Spooner v. Commissioner of Social Security Administration

Filing 28

ORDER - IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. (See document for further details). Signed by Senior Judge Neil V Wake on 7/22/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jennifer Spooner,

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No. CV-15-01699-PHX-NVW
Plaintiff,

ORDER

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v.

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Carolyn W. Colvin, Acting Commissioner
of Social Security,

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Defendant.

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Plaintiff Jennifer Spooner seeks review under 42 U.S.C. § 405(g) of the final
decision of the Commissioner of Social Security (“the Commissioner”), which denied her
disability insurance benefits and supplemental security income under sections 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the
Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based
on legal error, the Commissioner’s decision will be affirmed.
I.

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BACKGROUND
Plaintiff was born in September 1976. She completed ninth grade and has a GED.

She has worked as a waitress, bartender, and hostess. She suffers primarily from neck
and lower back pain and migraine headaches. She was 29 years old on the alleged onset
date of disability, December 15, 2005. She lives with her disabled father and two
daughters, one of which was born on December 15, 2005, and the other on November 20,

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2001. In May 2012, she reported being able to drive, go out alone, shop for groceries
weekly, feed pets, do laundry, wash dishes, watch television, walk one flight of stairs, go
outside a few times daily, and walk for ten minutes before needing to rest. In 2010 and
2013, Plaintiff reported exercising regularly.
On February 3, 2012, Plaintiff applied for disability insurance benefits and
supplemental security income, alleging disability beginning December 15, 2005. On
March 3, 2014, she appeared with her attorney and testified at a hearing before the ALJ.
A vocational expert also testified. On April 7, 2014, the ALJ issued a decision that
Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals
Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s
decision the Commissioner’s final decision. On August 27, 2015, Plaintiff sought review
by this Court.
In her opening brief, Plaintiff identified three issues for this appeal:
1.

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recommendation

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because

reconstructive

surgery

is

by

definition

debilitating, and, if so, was it harmful error?
2.

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Did the ALJ mischaracterize Plaintiff’s treating physician’s surgical

Did the ALJ properly consider Plaintiff’s fibromyalgia as required under
SSR 12-2p?

3.

Was the ALJ’s conclusion that Plaintiff could return to her past work as a
hostess supported by substantial evidence?

In response, in the context of the second issue, Defendant stated that Plaintiff’s opening
brief had not challenged the ALJ’s credibility determination and therefore Plaintiff
waived it. In her reply, Plaintiff stated that because the ALJ’s credibility determination is
wholly irrelevant to Plaintiff’s objectively severe impairments, Plaintiff did not want to
waste the Court’s time arguing harmless error.

But she also stated that credibility

determinations now are improper under SSR 16-3p, published on March 28, 2016. The
Court granted Defendant leave to file a surreply to address issues raised for the first time

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in Plaintiff’s reply and granted Plaintiff leave to respond to Defendant’s surreply. The
Court has reviewed and considered all of the parties’ briefing.
II.

STANDARD OF REVIEW
The district court reviews only those issues raised by the party challenging the

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Claims that
are not actually argued in an appellant’s opening brief are not considered on appeal.
Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Only
issues that are argued specifically and distinctly in a party’s opening brief are reviewed.
Id. Moreover, “when claimants are represented by counsel, they must raise all issues and
evidence at their administrative hearings to preserve them on appeal.” Meanel v. Apfel,
172 F.3d 1111, 1115 (9th Cir. 1999). Failure to do so will only be excused when
necessary to avoid a manifest injustice. Id.
A 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,
less than a preponderance, and relevant evidence that a reasonable person might accept as
adequate to support a conclusion considering the record as a whole. Id. In determining
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. Generally, when the evidence is susceptible to more than one rational
interpretation, courts must uphold the ALJ’s findings if they are supported by inferences
reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012). “Overall, the standard of review is highly deferential.” Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015).
Social Security Rulings (“SSRs”) do not carry the force of law, but they reflect the
official interpretation of the Social Security Administration and are binding on ALJs.
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). They are entitled to some

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deference to the extent they are consistent with the Social Security Act and regulations.
Id.

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Harmless error principles apply in the Social Security Act context. Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains
substantial evidence supporting the ALJ’s decision and the error does not affect the
ultimate nondisability determination. Id. The claimant usually bears the burden of
showing that an error is harmful. Id. at 1111.
III.

FIVE-STEP SEQUENTIAL EVALUATION PROCESS
To determine whether a claimant is disabled for purposes of the Social Security

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(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 engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). 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. § 404.1520(a)(4)(ii).
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. Pt. 404.
§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If
not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual
functional capacity and determines whether the claimant is still capable of performing
past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the
inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines
whether the claimant can perform any other work based on the claimant’s residual
functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the
claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ found that Plaintiff meets the insured status requirements of
the Social Security Act through September 30, 2007, and that she has not engaged in
substantial gainful activity since December 15, 2005, the alleged onset date. At step two,
the ALJ found that Plaintiff has the following severe impairments: degenerative disc
disease of the lumbar and cervical spine, polyarthralgia, hypertension, fibromyalgia, and
migraine headaches. At step three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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At step four, the ALJ found that Plaintiff:

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has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except she is precluded from climbing
ladders, ropes and scaffolds; she can occasionally climb ramps and stairs,
and crawl; she can frequently stoop, crouch, and kneel; she can perform
occasional bilateral overhead reaching; and she should avoid concentrated
exposure to excessive noise and excessive lighting.

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The ALJ further found that Plaintiff is capable of performing past relevant work as a
hostess.
IV.

ANALYSIS

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A.

The ALJ Did Not Mischaracterize Plaintiff’s Treating Physician’s
Surgical Recommendation.

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Plaintiff contends the ALJ mischaracterized the recommendation of neurosurgeon

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Dr. Christopher Iannotti and erroneously concluded that Plaintiff’s treatment was

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“conservative and routine” without addressing the debilitating nature of reconstructive

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surgery.

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Plaintiff first consulted with Dr. Iannotti on January 10, 2013. He noted that

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Plaintiff described a ten-year history of neck pain and treatment consisting of narcotic

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pain medication and cervical epidural spinal injections. After examining Plaintiff and

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reviewing an MRI of her neck, Dr. Iannotti said that Plaintiff’s options consisted of

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“continued conservative non-operative management versus surgical intervention

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consisting of C4-5 anterior cervical discectomy fusion.” He said that Plaintiff was “a
very reasonable candidate for surgery,” but he did not feel this was an “emergency.”
Further, Dr. Iannotti said, “I do not necessarily feel that she must undergo surgery at this
time.” However, Dr. Iannotti recommended that Plaintiff not wait more than three to six
months to undergo surgery.
Plaintiff saw Dr. Iannotti again on January 23, 2013. Dr. Iannotti noted that
Plaintiff continued to use nicotine in the form of electronic cigarettes and he
recommended cessation of all nicotine products prior to surgery. He further noted that
they would try to schedule surgery in two months to allow time for smoking cessation.
There is no evidence in the record that Plaintiff ever received treatment from Dr. Iannotti
or ever saw him again.
In March 2013, Plaintiff began seeing Family Nurse Practitioner Chad Dance at
Advanced Pain Management where she received monthly refills of prescription pain
medication. In March, April, and May 2013, Plaintiff told FNP Dance that surgery was
recommended but she was “holding off.” In April and May 2013, FNP Dance noted:
“Will defer surgery as recommended by the neurosurgeon for now until conservative
measures do not reduce the pain.”

On June 6, 2013, Dr. Brian Page performed a

diagnostic cervical medial branch block to determine whether radiofrequency ablation of
the thoracic medial branch nerves would resolve Plaintiff’s pain. On June 14, 2013,
Plaintiff reported to FNP Dance that she had not experienced any reduction in pain after
the cervical medial branch block. FNP Dance noted: “Will consider a spinal surgeon
referral for second opinion for cervical spinal surgery.

Will defer surgery as

recommended by the neurosurgeon for now until conservative measures do not reduce the
pain.” In July, August, and September 2013, FNP Dance noted that “she is currently in
the work up for cervical fusion, she states she has blood work to do and then she will be
ready for surgery.” However, she said she was putting off the blood work because she
was afraid of the surgery. In October 2013, FNP Dance noted that Plaintiff was going to

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schedule lumbar transforaminal injections and follow up with her surgeon regarding neck
surgery.
Plaintiff had not undergone the proposed fusion surgery before the ALJ hearing on
March 3, 2014. During the hearing, the ALJ asked Plaintiff why Dr. Iannotti stated on
January 10, “I do not necessarily feel that she must undergo surgery at this time,” but
then on January 23 said surgery would be rescheduled. Plaintiff’s counsel clarified that
Dr. Iannotti had said Plaintiff was a reasonable candidate for surgery, but it did not need
to be done urgently. The ALJ’s hearing decision correctly stated that the initial plan was
to continue “conservative, non-operative management,” but two weeks later “the plan
included neck surgery once the claimant ceased smoking.”

The fact that Plaintiff

postponed the surgery more than a year implies that it was not urgently needed.
Plaintiff incorrectly argues that the ALJ “does not address Dr. Iannotti’s findings
directly, in effect finding that Dr. Iannotti’s statement deserved no weight.” In fact, the
ALJ cited Dr. Iannoti’s physical examination findings, which included normal sensation,
muscle strength, and reflexes. The findings also included normal walking and observing
no acute distress. Dr. Iannotti reported that Plaintiff denied having back pain, joint pain,
joint swelling, muscle cramps, muscle weakness, stiffness, or arthritis. The ALJ was not
required to assign any weight to Dr. Iannotti’s recommendation that Plaintiff have
surgery eventually. Dr. Iannotti never treated Plaintiff and did not provide a medical
source statement or a medical opinion regarding Plaintiff’s functionality.
Further, the ALJ’s conclusion that Plaintiff’s treatment for neck pain was
conservative is unrelated to his interpretation of Dr. Iannotti’s surgical recommendation.
The ALJ noted that despite an alleged onset date of December 15, 2005, there was no
evidence of continuous and regular treatment for any condition until January 2007. The
ALJ further stated that “most of the treatment notes documented conservative treatment
consisting of pain medications only” with multiple illustrative citations, which do not
include Dr. Iannotti’s office visit notes because he did not prescribe any treatment. While

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injections may be invasive, multiple medical sources in the record referred to them as
conservative treatment.
Finally, it is irrelevant whether the proposed cervical fusion would have been
debilitating. Plaintiff did not have it.123

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Plaintiff misstates the holding of Garrison v. Colvin, 759 F.3d 995, 1015 (9th
Cir. 2014). The Ninth Circuit found error not because epidural injections and physical
therapy were referred to as “conservative” treatments, but because the ALJ’s conclusion
that Garrison’s condition improved was not supported by the record.
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Plaintiff mentions in passing that Listings 1.03, 1.04, and 14.09 are satisfied
because the evidence of record documents an inability to ambulate “efficiently.” The
requirement is “effective,” not “efficient,” and under the Listings limitations in climbing,
balancing, stooping, crouching, and crawling do not constitute ineffective ambulation.
She does not use a walker or two canes, and she is able to carry out routine ambulatory
activities, such as shopping. In January 2012, Dr. David Towns observed that Plaintiff
had normal gait and station and said she could participate in an exercise program.
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Plaintiff’s opening brief wanders from the issue she identified as the ALJ’s
mischaracterization of Dr. Iannotti’s recommendation for surgical intervention to a
rambling discussion of medical opinions. Although not properly raised as an issue on
appeal, the ALJ gave specific, legitimate, clear, and convincing reasons supported by
substantial evidence in the record for giving Dr. Dale Ratcliff’s one-page November 15,
2012 migraine headache assessment little weight. Dr. Ratcliff wrote that Plaintiff had not
worked for two years due to chronic migraines. The ALJ gave the headache assessment
little weight because it does not explain how headaches interfere with Plaintiff’s ability to
work; Dr. Ratcliff is a pain management specialist, not a headache specialist; Plaintiff
was removed from pain management because she violated the narcotics agreement; and
the assessment is inconsistent with other medical opinions, objective testing, and
Plaintiff’s reported activities of daily living. See Orn v. Astrue, 495 F.3d 625, 632 (9th
Cir. 2007); 20 C.F.R. § 404.1527(c). Further, the ALJ did not reject Dr. Ratcliff’s
Physical Residual Functional Capacity Assessment in which he assessed limitations
consistent with the ability to perform a range of light-exertion work. The ALJ rejected
only Dr. Ratcliff’s limitations on stooping, kneeling, crouching, and crawling because
those limitations were not supported by the objective record.

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B.

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The ALJ Properly Considered Plaintiff’s Fibromyalgia as Required
Under SSR 12-2p.

Plaintiff contends the ALJ “harmfully failed to follow the Defendant’s agency
policy [SSR 12-2p] and when Plaintiff’s fibromyalgia is properly considered, disability is
established.”
Under SSR 12-2p, evidence of fibromyalgia must be provided by a licensed
physician who reviewed the claimant’s medical history and conducted a physical exam.
SSR 12-2p describes two sets of criteria for diagnosing fibromyalgia. Plaintiff has not
identified record evidence showing that a licensed physician found that she meets either
set of criteria. Neither the ALJ nor Plaintiff cited to any record evidence showing that a
licensed physician formally diagnosed fibromyalgia or reporting any medical findings
supporting such a diagnosis. On January 23, 2013, Dr. Iannotti referred Plaintiff to a
rheumatologist for evaluation of “possible rheumatoid arthritis and/or fibromyalgia,” but
the record does not include evidence of any such evaluation. Nevertheless, the ALJ
found that one of Plaintiff’s severe impairments is fibromyalgia.
Under either SSR 96-7 or SSR 16-3p, no symptom or combination of symptoms
can be the basis for a finding of disability unless there are medical signs and laboratory
findings demonstrating the existence of a medically determinable impairment that could
reasonably be expected to produce the symptoms. Here, no medical signs or laboratory
findings in the record demonstrate that Plaintiff has fibromyalgia. Plaintiff argues that
because her “pain results from severe impairments well-established in the medical
evidence,” the ALJ’s rejection of her pain testimony is inconsistent with his own decision
and the evidence of record. Plaintiff’s other impairments may be well established in the
medical evidence, but fibromyalgia is not. However, the ALJ’s apparent error in finding
a severe impairment of fibromyalgia favors Plaintiff and is therefore deemed harmless.
Under SSR 12-2p, if objective medical evidence does not substantiate a claimant’s
statements about the intensity, persistence, and functionally limiting effects of
fibromyalgia symptoms, the ALJ will consider all of the evidence in the case record,
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including the claimant’s daily activities, medications or other treatments the claimant
uses, or has used, to alleviate symptoms; the nature and the frequency of the claimant’s
attempts to obtain medical treatment for symptoms; and statements by other people about
the claimant’s symptoms. As discussed above, the objective medical evidence does not
substantiate Plaintiff’s assertion that fibromyalgia symptoms interfere with her ability to
work.
Plaintiff has not actually made statements about the intensity, persistence, and
functionally limiting effects of her fibromyalgia symptoms.

She has not identified

symptoms of fibromyalgia that interfere with her ability to work. She generally testified
that she has pain, difficulty concentrating, and short-term memory problems. She also
testified that since 2007 she has been taking opioid pain medications, which make her
tired and adversely affect her memory and ability to concentrate. When asked whether
she could tell if fibromyalgia affected her concentration, Plaintiff responded that she
believed it was mainly the migraines that affect her concentration. She also testified that
she has trouble sleeping at night, which causes her to be tired during the day. She said
that sometimes her hands hurt or swell, possibly from fibromyalgia or perhaps from
rheumatoid arthritis, which she believed to be in remission.
The ALJ did not reject or discount any subjective symptom testimony or other
evidence that Plaintiff’s fibromyalgia precludes or limits her ability to work because there
is no such testimony or evidence in the record. Further, the ALJ did not err by failing to
incorporate fibromyalgia into his residual functional capacity assessment because there is
no evidence that Plaintiff’s fibromyalgia limited her ability to work.
C.

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The ALJ’s Conclusion that Plaintiff Could Return to Her Past Work as
a Hostess Is Supported by Substantial Evidence.

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At step four, the claimant has the burden of showing she can no longer perform

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her past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ

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may conclude the claimant can perform past relevant work by finding she is able to

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perform the actual functional demands and duties of a particular past relevant job or she
is able to perform the functional demands and duties of the occupation as generally
required by employers throughout the national economy. Id. at 845. Thus, at step four,
the claimant has the burden to prove she cannot perform her prior relevant work either as
actually performed or as generally performed in the national economy. Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008).
“Past relevant work” is work that the claimant performed within the past 15 years,
that was substantial gainful activity, and that lasted long enough for the claimant to learn
to do it. 20 C.F.R. § 404.1560(b)(1). The ALJ may assess a claimant’s past relevant
work as actually performed by considering a properly completed vocational expert’s
report and/or the claimant’s own testimony. Pinto, 249 F.3d at 845. The Dictionary of
Occupational Titles usually is the best source for how a job is generally performed. Id.
In addition, a vocational expert may offer relevant evidence within his or her expertise or
knowledge concerning the demands of a claimant’s past relevant work, either as actually
or generally performed. 20 C.F.R. § 404.1560(b)(2).
At the hearing, during which Plaintiff was accompanied by counsel, the ALJ
questioned Plaintiff about her employment as a waitress, bartender, and a hostess. The
ALJ said that based on her earnings, only the hostess work would be considered past
relevant work. The ALJ questioned the vocational expert regarding the classification of
the hostess position and posed hypothetical questions regarding the hostess position as
past relevant work.

Plaintiff’s counsel did not raise any objection to considering

Plaintiff’s hostess work as past relevant work. Therefore, Plaintiff failed to preserve for
appeal any objection to considering hostess work as past relevant work. See Meanel v.
Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).
Moreover, substantial evidence supports the ALJ’s findings that Plaintiff
performed work as a hostess within the past 15 years, she performed it for a sufficient
length of time to learn and provide average performance, and she performed it at the level

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of substantial gainful activity. Plaintiff reported that she worked as a hostess 1994–1998,
1997–2001, and 2005–2006. Plaintiff’s reported earnings for calendar year 1998 were
$8,466.50, and the hearing was in March 2014.
Plaintiff also contends the ALJ erred in finding Plaintiff can perform hostess work
because it requires frequent reaching and would require working in an environment with
excessive noise. The ALJ’s residual functional capacity assessment limits Plaintiff to
occasional bilateral overhead reaching and directs that she should avoid concentrated
exposure to noise. The ALJ included both of those limitations in the second hypothetical
he posed to the vocational expert. The vocational expert classified hostess work as DOT
310.137-010. Hostess work as defined by DOT 310.137-010 includes exposure to a
moderate noise level and requires reaching frequently. DOT 310.137-010 does not
explain whether or to what extent “reaching” includes overhead reaching. The vocational
expert opined that an individual with the limitations included in the second hypothetical,
i.e., occasional overhead reaching, would be able to perform hostess work and testified
that her opinion was consistent with the DOT and her training, education, and experience
in the field. The ALJ did not err in adopting the vocational expert’s opinion.
IT IS THEREFORE ORDERED that the final decision of the Commissioner of
Social Security is affirmed.

The Clerk shall enter judgment accordingly and shall

terminate this case.
Dated this 22nd day of July, 2016.

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Neil V. Wake
Senior United States District
Judge

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