Scull v. Commissioner of Social Security, No. 4:2017cv05012 - Document 18 (E.D. Wash. 2018)
Court Description: ORDER Denying 15 Plaintiff's Motion for Summary Judgment and Granting 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Scull v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Mar 16, 2018 1 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 LISA K. SCULL, 8 No. 4:17-cv-05012-MKD 10 COMMISSIONER OF SOCIAL ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 SECURITY, ECF Nos. 15, 16 Plaintiff, 9 vs. 12 Defendant. 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 15, 16. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s Motion (ECF No. 15) and grants Defendant’s Motion (ECF No. 18 16). 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 21 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that is not only unable to do his previous 15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 21 ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c); 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 20 21 ORDER - 4 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. 8 At step four, the Commissioner considers whether, in view of the claimant’s 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 21 ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 12 ALJ’S FINDINGS Plaintiff applied for disability insurance benefits and supplemental security 13 income benefits on February 25, 2013, alleging a disability onset date of 14 November 4, 2004. Tr. 237-53. Benefits were denied initially, Tr. 97-136, 175-82, 15 and upon reconsideration. Tr. 137-174, 187-95. Plaintiff appeared for a hearing 16 before an administrative law judge (ALJ) on June 10, 2015. Tr. 44-96. On July 9, 17 2015, the ALJ denied Plaintiff’s claims. Tr. 13-43. 18 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 19 activity since November 4, 2004. Tr. 18. At step two, the ALJ found Plaintiff has 20 the following severe impairments: carpal tunnel syndrome, bilateral shoulder 21 ORDER - 6 1 impairment, degenerative disk disease, obesity, anxiety disorder, and affective 2 disorder. Tr. 18. At step three, the ALJ found that Plaintiff does not have an 3 impairment or combination of impairments that meets or medically equals the 4 severity of a listed impairment. Tr. 20. The ALJ then concluded that Plaintiff has 5 the RFC to: 6 7 8 9 10 11 12 13 14 15 16 lift and carry ten pounds frequently and twenty pounds occasionally. She can stand and/or walk for one hour at a time, after which she needed to sit for a few minutes (while she continues to work in a sitting position). In this manner, she can stand and/or walk for a total of four hours in an eight-hour workday. She can sit for a total of six hours in an eight-hour workday. She can occasionally reach overhead bilaterally. She can frequently reach in other directions bilaterally. Below shoulder-level, she can frequent push and pull with her upper extremities. She can occasionally push and pull with her lower extremities. She can occasionally climb ramps and stairs. She cannot climb ladders, rope, or scaffolding. She can frequently stoop and balance. She can occasionally kneel and crouch. She cannot crawl. She must avoid concentrated exposure to wetness, extreme cold, vibration, and hazards (such as heights and dangerous machinery). She has sufficient concentration to understand, remember, and carry out simple repetitive tasks in in twohour increments. With usual and customary breaks, she can maintain adequate pace with simple repetitive tasks. She can work in coordination with a small group of coworkers, numbering three or less. She can work in the same room with an unlimited number of coworkers, without coordination with these individuals. She can have superficial and occasional contact with the general public.[] She can occasionally interact with supervisors and can respond appropriately to criticism. 17 Tr. 22-23 (footnote omitted). At step four, the ALJ found Plaintiff was unable to 18 perform any past relevant work. Tr. 33. At step five, the ALJ found that 19 considering Plaintiff’s age, education, work experience, and RFC, there are other 20 jobs that exist in significant numbers in the national economy that the Plaintiff can 21 ORDER - 7 1 perform such as officer helper, production assembler, and order caller. Tr. 34-35. 2 The ALJ concluded Plaintiff has not been under a disability, as defined in the 3 Social Security Act, since November 4, 2004 through the date of the decision. Tr. 4 35. 5 On December 20, 2016, the Appeals Council denied review, Tr. 1-8, making 6 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 7 review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her disability insurance benefits under Title II and supplemental security income 11 benefits under Title XVI of the Social Security Act. ECF No. 15. Plaintiff raises 12 the following issues for this Court’s review: 13 14 15 16 1. Whether the ALJ properly determined Plaintiff’s severe impairments at step two; and 2. Whether the ALJ properly determined Plaintiff’s residual functional capacity and posed a proper hypothetical to the vocational expert. 17 See ECF No. 15 at 4, 11. 18 19 20 21 ORDER - 8 1 DISCUSSION 2 A. Step Two 3 Plaintiff contends the ALJ should have found at step two that she suffers 4 from a severe left knee impairment. ECF No. 15 at 7-9. The ALJ found the record 5 contained conflicting evidence that failed to establish Plaintiff suffers from a 6 severe knee impairment. Tr. 19. 7 “The step-two inquiry is a de minimis screening device to dispose of 8 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The 9 purpose is to identify claimants whose medical impairment is so slight that it is 10 unlikely they would be disabled even if age, education, and experience were taken 11 into account. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). Plaintiff has the 12 burden to show that his or her impairments are severe and are expected to last for a 13 continuous period of twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004 14 (9th Cir. 2005); see also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.909, 15 416.920(a)(4)(ii). An impairment, to be considered severe, must significantly limit 16 an individual’s ability to perform basic work activities, which include: walking, 17 standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; seeing, 18 hearing, and speaking; understanding, carrying out and remembering simple 19 instructions; responding appropriately to supervision, coworkers and usual work 20 situations; and dealing with changes in a routine work setting. 20 C.F.R. §§ 21 ORDER - 9 1 404.1521(b), 920(c); Social Security Ruling (SSR) 85-28, 1985 WL 56856 (Jan. 1, 2 1985); Smolen, 80 F.3d at 1290. “An impairment is not severe if it is merely ‘a 3 slight abnormality (or combination of slight abnormalities) that has no more than a 4 minimal effect on the ability to do basic work activities.’ ” Webb v. Barnhart, 433 5 F.3d 683, 686 (9th Cir. 2005) (quoting SSR 96–3p, 1996 WL 374181 (July 2, 6 1996)). 7 A physical or mental impairment is one that “results from anatomical, 8 physiological, or psychological abnormalities which are demonstrable by 9 medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 10 423(d)(3), 1382c(a)(3)(D). An impairment must be established by medical 11 evidence consisting of signs, symptoms, and laboratory findings, and “under no 12 circumstances may the existence of an impairment be established on the basis of 13 symptoms alone.” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (citing 14 SSR 96-4p, 1996 WL 374187 (July 2, 1996)) (defining “symptoms” as an 15 “individual’s own perception or description of the impact of” the impairment). 16 Here, the ALJ resolved step two in Plaintiff’s favor, finding six of Plaintiff’s 17 impairments were severe including carpal tunnel syndrome, bilateral shoulder 18 impairment, degenerative disk disease, obesity, anxiety disorder, and affective 19 disorder. Tr. 18. However, the ALJ found that Plaintiff’s left knee impairment, 20 seizures, and somatoform disorder were all non-severe impairments. Tr. 19-20. 21 ORDER - 10 1 The ALJ separately analyzed Plaintiff’s knee impairment, describing the medical 2 evidence in detail. Tr. 19. The ALJ gave multiple reasons for finding the knee 3 impairment is non-severe. First, the ALJ remarked that the medical record did not 4 refer to prolonged use of an assistive device, though the ALJ also acknowledged 5 Plaintiff’s use of a walker after a 2004 motor vehicle accident and Plaintiff’s 6 testimony that she has continued to use a cane occasionally. Tr. 19. The ALJ 7 further found that the left medial meniscus tear was resolved with arthroscopic 8 surgery in 2005 and while receiving medical care (including physical therapy) in 9 2006 she repeatedly reported her left knee was doing “fairly well.” Tr. 19. In 10 2007, Plaintiff reported her left knee injury from the motor vehicle accident had 11 resolved. Id. Finally, the ALJ found that the left lateral meniscus tear had 12 resolved itself within less than twelve months of its discovery. Tr. 19. 13 Plaintiff does not challenge any of these findings or contend the ALJ failed 14 to consider medical records. Instead, Plaintiff alleges that her diagnosis of a 15 medial meniscus tear in 2005 and her testimony that she uses a cane on occasion 16 are sufficient to demonstrate her knee impairment is severe. ECF No. 15 at 8. The 17 Court concludes the ALJ’s step two analysis was sufficient and the finding that 18 Plaintiff’s knee impairment is non-severe is “supported by inferences reasonably 19 drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 20 21 ORDER - 11 1 2008) (citation omitted). Accordingly, substantial evidence supports the ALJ’s 2 decision at step two. See Webb, 433 F.3d at 686. 3 Additionally, the parties concede that once step two is resolved in Plaintiff’s 4 favor, harmful error only occurs only if the ALJ fails to properly consider all 5 impairments, both severe and non-severe, in the RFC analysis. See Stout v. 6 Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (recognizing that 7 harmless error applies in the social security context); Burch v. Barnhart, 400 F.3d 8 676, 682-684 (9th Cir. 2006) (holding that the ALJ did not commit reversible error 9 by not considering the claimant’s obesity or finding it severe at step two because 10 the ALJ proceeded with the sequential analysis and adequately considered the 11 claimant’s obesity in making his RFC determination). 12 As explained below, Plaintiff fails to show that the ALJ erred in determining 13 Plaintiff’s RFC at step four. 14 B. RFC and Hypothetical 15 Plaintiff contends the ALJ’s formulation of the RFC, and the resulting 16 hypothetical posed to the vocational expert, failed to consider the impact of her 17 knee impairment, obesity, and limitations of being off-task, absenteeism, and no 18 more than occasional reaching in all directions. ECF No. 15 at 9-11; ECF No. 17 19 at 2-4. 20 21 ORDER - 12 1 In determining RFC, the ALJ is required to consider the combined effect of 2 all the claimant’s impairments, mental and physical, exertional and non-exertional, 3 severe and non-severe. 42 U.S.C. §§ 423(d) (2)(B), (5)(B). “An ALJ must 4 propound a hypothetical to a [vocational expert] that is based on medical 5 assumptions supported by substantial evidence in the record that reflects all the 6 claimant’s limitations.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 7 “If the assumptions in the hypothetical are not supported by the record, the opinion 8 of the vocational expert that claimant has a residual working capacity has no 9 evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). “It 10 is, however, proper for an ALJ to limit a hypothetical to those impairments that are 11 supported by substantial evidence in the record.” Osenbrock, 240 F.3d at 1165. 12 Here, this Court finds the RFC included the full extent of Plaintiff’s limitations 13 supported by substantial evidence in the record. 14 1. Knee impairment 15 Plaintiff contends the ALJ failed to consider her left knee impairment in 16 formulating the RFC. In support of this assertion, Plaintiff argues “[t]his is evident 17 in the fact that the ALJ only limited [Plaintiff] to light work with other non18 exertional limitations. Such a knee impairment in combination with the other 19 severe impairments surely results in [] further diminished RFC findings.” ECF No. 20 17 at 2. Plaintiff fails to develop this portion of her argument. She does not 21 ORDER - 13 1 identify any additional functional limitations as a result of her knee impairment or 2 cite to any evidence in the 1600-page record in support of her position. It is not 3 this Court’s duty to comb the record in search of arguable support for Plaintiff’s 4 contention. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.2014) (finding that a 5 reviewing court cannot “comb the administrative record to find specific conflicts”). 6 As a result, the Court may decline to consider this argument. Carmickle, 533 F.3d 7 at 1161 n.2 (“[I]ssues not argued with specificity in briefing will not be 8 addressed.”). 9 Despite Plaintiff’s general contention to the contrary, it appears that the ALJ 10 incorporated all of her physical limitations into the RFC. The ALJ provided a 11 thorough summary of the medical evidence pertaining to Plaintiff’s knee 12 impairment, including the objective evidence and examination findings after 13 Plaintiff underwent arthroscopic surgery in 2005. Tr. 19 (citing Tr. 522-25 (2006 14 progress notes stating Plaintiff is going to physical therapy, “doing well,” and has 15 full range of motion in the knee and stability in all planes); Tr. 848 (“She did have 16 some significant lower extremity symptoms initially…but those have since 17 resolved.”); Tr. 1129-31 (MRI of left knee dated February 2, 2012); Tr. 1441-42 18 (April 3, 2013 treatment note from Andrea Barrett, M.D. noting “Left knee 19 subjectively worse since cessation of vitamin D supplement. Clinically she does 20 not appear to have a lateral meniscus tear or patellar instability and tweaking the 21 ORDER - 14 1 saphenous nerve can cause a reflex inhibition of quad contraction which will make 2 her knee collapse.”)). After consideration of the record in its entirety, the ALJ 3 found numerous physical limitations in formulating the RFC and incorporated 4 them into the assessment of Plaintiff’s ability to perform light work, her ability to 5 stand or walk, and the assessment of Plaintiff’s postural limitations. Tr. 22-23. 6 The RFC is consistent with the 2013 assessment of Dale Thuline, M.D., Tr. 1577 74, which the ALJ accorded significant weight and Plaintiff does not contest. Tr. 8 23. If there is substantial evidence to support the administrative findings, or if 9 there is conflicting evidence that will support a finding of either disability or 10 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 11 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 The Court concludes Plaintiff has not demonstrated the ALJ erred in regards 13 to any limitations related to Plaintiff’s knee impairment. 14 2. Obesity 15 With respect to Plaintiff’s obesity, SSR 02–1p states that “[an ALJ] may not 16 make assumptions about the severity or functional effects of obesity combined 17 with other impairments. Obesity in combination with another impairment may or 18 may not increase the severity of functional limitations of the other impairment. 19 [The ALJ] will evaluate each case based on the information in the case record.” 20 SSR 02–1p, 2002 WL 34686281, at *6 (Sept. 12, 2002). 21 ORDER - 15 1 The ALJ appropriately considered any possible limitations resulting from 2 this impairment in the RFC finding. The ALJ’s decision set forth Plaintiff’s 3 testimony that her weight fluctuated between 350 and 500 pounds and “constantly 4 strained her back, joints, and muscles.” Tr. 23. The ALJ also noted other medical 5 evidence documenting Plaintiff’s weight, Tr. 26, and her ability to ascend stairs 6 quickly without any difficulty, despite a weight of 300 pounds. Tr. 24 (citing Tr. 7 359). The ALJ concluded that “[t]he claimant’s overall medical studies and 8 examination findings are inconsistent with severe deficits in her physical 9 functioning, even with the effects of her obesity.” Tr. 24. Among a number of 10 restrictions, the RFC limited Plaintiff to light work with simple repetitive tasks, 11 standing or walking for an hour at time, and never crawling or climbing ladders, 12 rope or scaffolding. Tr. 23. 13 Plaintiff has not identified any information from any treatment provider 14 describing how her obesity limits her functioning more restrictively than 15 determined by the ALJ. Plaintiff suggests that her weight sufficed to alert the ALJ 16 of the need for a more restrictive limitations than occasional kneeling, crouching, 17 and climbing stairs. ECF No. 17 at 3. However, the ALJ cannot assume Plaintiff’s 18 obesity has more limiting functional effects than are supported by the record. 19 Plaintiff does not identify any error in the ALJ’s evaluation of the medical 20 evidence, which consisted of a detailed description of the evidence of record and 21 ORDER - 16 1 numerous professional assessments of the Plaintiff’s physical functioning, four of 2 which the ALJ accorded significant weight. Tr. 31-32 (crediting Larry Iversen, 3 M.D., Dennis Byam, D.C., Raymond Berg, M.D., and Dr. Thuline). Both Dr. 4 Thuline and physical therapist Kirk Holle, whom the ALJ assigned some weight, 5 opined Plaintiff could occasionally crouch, kneel, and climb stairs. Tr. 30 (citing 6 Tr. 356-64); Tr. 32 (citing Tr. 151). Substantial evidence supports the ALJ’s RFC 7 determination and the ALJ properly considered Plaintiff’s obesity in accordance 8 with SSR 02-1p. See Burch, 400 F.3d at 683 (the plaintiff has burden to provide 9 evidence establishing how her obesity limits her functioning). 10 3. Off-task Time or Absenteeism 11 Plaintiff contends “[t] result of [Plaintiff’s] physical and mental health 12 impairments substantiate the need for a finding of ‘off-task’ time and absences 13 from work.” ECF No. 15 at 10. 14 Plaintiff provides no support for this assertion, but notes that in 2013, 15 examining psychologist Manuel Gomes, Ph.D. opined Plaintiff would need to start 16 with part-time work and a mental source statement dated November 30, 2013 from 17 Kishore Varada, PA-C, Tr. 1523-25, found marked and severe limitations in 18 Plaintiff’s ability to perform at a consistent pace. ECF No. 15 at 10. However, the 19 ALJ concluded “[w]ith usual and customary breaks, she can maintain adequate 20 pace with simple repetitive tasks.” Tr. 23. In making this finding, the ALJ 21 ORDER - 17 1 considered both of opinions of Dr. Gomes and Mr. Varada and assigned them 2 minimal weight. Tr. 32-33. The ALJ rejected Dr. Gomes and Mr. Varada’s 3 assessments based upon inconsistency with examination notes, heavy reliance 4 upon subjective reporting, and incompatibility with Plaintiff’s activities and the 5 longitudinal examination findings. Tr. 32-33. Plaintiff does not challenge these 6 determinations or any aspect of the ALJ’s discussion of the relevant medical 7 evidence. These assessments are thus based on substantial evidence and cannot be 8 reweighed by this Court. Further, the ALJ gave significant weight to the opinions 9 of Dr. Fligstein and Dr. Nelson, who opined Plaintiff could maintain concentration, 10 persistence, and pace with at least semi-skilled tasks, Tr. 33, and the RFC limited 11 the Plaintiff to simple repetitive tasks. Plaintiff does not identify any error in the 12 ALJ’s evaluation of these medical opinions. Accordingly, the Court concludes the 13 ALJ properly exercised her discretion not to include limitations for being off task 14 and absent from work in Plaintiff’s RFC. 15 4. Reaching Limitation 16 Plaintiff also contends, for the first time in the Reply, that the ALJ’s 17 formulation of the RFC is not supported by substantial evidence because it did not 18 include a limitation to no more than occasional reaching in any direction. ECF No. 19 17 at 3. The RFC limited Plaintiff to occasional reaching overhead bilaterally, 20 21 ORDER - 18 1 frequent reaching in other directions bilaterally, and below shoulder-level, frequent 2 pushing and pulling with her upper extremities.1 Tr. 23. 3 Plaintiff fails to develop this argument and raised it for the first time in the 4 Reply, therefore the Court may decline to consider it. Carmickle, 533 F.3d at 1161 5 n.2 (“[I]ssues not argued with specificity in briefing will not be addressed.”). 6 Plaintiff does not address the medical evidence and the ALJ’s findings related to 7 Plaintiff’s reaching limitation. In the decision, the ALJ explained the evidence 8 relied upon in formulating the RFC and supporting the finding that “[a]lthough she 9 has ongoing upper extremity impairment, the claimant’s longitudinal examination 10 findings indicate normal functioning in her arms.” Tr. 26. The ALJ thoroughly 11 summarized the relevant medical evidence after Plaintiff’s shoulder surgery. Tr. 12 26-27. Moreover, in regards to Plaintiff’s ability to reach, the ALJ adopted the 13 opinion of Dr. Thuline and rejected the opinion of Andrea Barrett, M.D. based on 14 the claimant’s routine displays of normal or nearly-normal range of motion in her 15 extremities, without motor or sensory defects. Tr. 31-32. Plaintiff does not 16 17 1 All of the jobs identified by the vocational expert (VE) required frequent 18 reaching outward. Tr. 92. The VE testified that if an individual with the same 19 RFC “was limited to occasional reaching in all directions that would eliminate 20 those jobs.” Tr. 92, 93-94. 21 ORDER - 19 1 challenge any aspect of the ALJ’s discussion of the medical evidence regarding her 2 reaching limitation or the weight assigned to the foregoing opinions. Accordingly, 3 the Court finds the RFC’s limitations on reaching are supported by substantial 4 evidence. 5 Overall, the Court concludes the RFC is supported by substantial evidence in 6 the record. 7 5. Hypothetical 8 Plaintiff contends the ALJ’s errors in formulating the RFC resulted in the 9 ALJ propounding an incomplete hypothetical to the vocational expert. ECF No. 15 10 at 11 (stating the hypothetical was incomplete because it “failed to include an 11 indication of how her obesity will affect her RFC, how much time Ms. Scull would 12 be ‘off-task’ and how many days she would be absent from work as a result of her 13 impairments.”). However, the ALJ’s hypothetical contained the limitations that the 14 ALJ found credible and supported by substantial evidence in the record; thus, the 15 ALJ properly relied on the testimony by the vocational expert at steps four and 16 five. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 17 18 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 19 substantial evidence and free of harmful error. IT IS ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. 21 ORDER - 20 1 2. Defendant’s Motion for Summary Judgment (ECF No. 16) is 2 GRANTED. 3 The District Court Executive is directed to file this Order, enter 4 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 5 THE FILE. 6 DATED March 16, 2018. 7 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 21
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