Conry v. Commissioner of Social Security Administration

Filing 24

ORDER denying 23 Motion for Leave to File Supplemental Documents. The decision of the Administrative Law Judge is AFFIRMED. The Clerk shall enter judgment accordingly and terminate this case. Signed by Senior Judge Douglas L Rayes on 9/24/24. (DXD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Dawn Marie Annett Conry,
Plaintiff,

10
11

v.

12

Commissioner of Social Security
Administration,

13

No. CV-22-02139-PHX-DLR
Consolidated with:
No. CV-22-2140-PHX-DLR
ORDER

Defendant.

14
15
16

Claimant Dawn Conry filed an application for Social Security Disability Insurance

17

benefits on May 31, 2019 and then filed an application for Supplemental Security Income

18

benefits on December 10, 2019. (AR. 294–304.) She alleged a disability beginning March

19

7, 2018. (AR. 294.) Her last insured date was December 31, 2023 (AR. 22.) The Social

20

Security Administration denied her claims initially and again on reconsideration. (AR.

21

125, 142.) After an administrative hearing, the Administrative Law Judge (“ALJ”) issued

22

an unfavorable decision. (AR. 17.) The Appeals Council denied review of the decision,

23

making the ALJ’s finding the final decision of the Commissioner of the Social Security

24

Administration. (AR. 1.) Conry seeks judicial review of the Commissioner’s decision

25

under 42 U.S.C. § 405(g).

26

I.

Standard

27

To determine whether a claimant is disabled, the ALJ engages in a five-step

28

process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof for the first

1

four steps, but the burden shifts to the Commissioner at the fifth step. Tackett v. Apfel,

2

180 F.3d 1094, 1098 (9th Cir. 1999). First, the ALJ determines whether the claimant is

3

presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second,

4

the ALJ determines whether the claimant has a “severe” medically determinable physical

5

or mental impairment. Id. § 404.1520(a)(4)(ii). Third, the ALJ considers whether the

6

claimant’s impairment or combination of impairments meets or medically equals an

7

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. §

8

404.1520(a)(4)(iii). If so, the claimant is automatically considered disabled. Otherwise,

9

the ALJ moves to the fourth step, where she assesses the claimant’s residual functioning

10

capacity (“RFC”) and determines whether the claimant is still capable of performing past

11

relevant work. Id. § 404.1520(a)(4)(iv). If the claimant is not so capable, as the fifth and

12

final step, the ALJ must determine whether the claimant can perform any other work in

13

the national economy based on the claimant’s RFC, age, education, and work experience.

14

Id. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id.

15

This Court reviews only those issued raised by the party challenging the ALJ’s

16

decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). An ALJ’s factual

17

findings are “conclusive if supported by substantial evidence.” Biestek v. Berryhill, 139

18

S. Ct. 1148, 1153 (2019) (quotation and citation omitted). Substantial evidence is “more

19

than a mere scintilla” and “means—and means only—such relevant evidence as a

20

reasonable mind might accept as adequate to support a conclusion.” Id. at 1154

21

(quotations and citations omitted). “When evidence reasonably supports either

22

confirming or reversing the ALJ’s decision, [the Court] may not substitute [its] judgment

23

for that of the ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th

24

Cir. 2004). The substantial evidence standard is a “highly deferential standard of review.”

25

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).

26

II.

Analysis

27

Conry raises three issues for the Court’s consideration: (1) whether the ALJ erred

28

at step three of the five-step process; (2) whether the ALJ properly evaluated two medical

-2-

1

opinions; and (3) whether the ALJ properly evaluated Conry’s symptom testimony. She

2

later moved the Court for leave to submit supplemental documents. The Court will first

3

address Conry’s motion and then each of her challenges to the ALJ’s decision in turn.

4

a. The Court denies Conry’s motion because she has not demonstrated

5

good cause nor shown that the proffered documents are likely to

6

change the outcome of her case.

7

Conry moves the Court for leave to supplement the record with additional

8

documents. (Doc. 23.) Under 42 U.S.C. § 405(g), this Court is limited in its review of the

9

Commissioner’s decision and cannot consider new evidence in its review of the ALJ’s

10

decision. However, the Court can and will construe Conry’s motion as a motion for

11

remand based on new evidence. See Becknell-Jones v. Comm’r of Soc. Sec., No. 5:13-cv-

12

218-Oc-18PRL, 2013 WL 5556258, at *1 (M.D. Fla. Oct. 8, 2013). “To justify a remand,

13

the claimant must show that there is ‘good cause’ for her failure to offer the evidence at

14

the administrative level and that there is a reasonable possibility that the evidence would

15

change the outcome.” Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985); see 42

16

U.S.C. § 405(g). Conry has not made the requisite showing. She submitted pay stub

17

copies and “transitional work agreement dates” but no explanation as to why they should

18

be included in the record or why they were not submitted at the administrative level.

19

Moreover, the documents appear to be inconsequential to the outcome of her case. The

20

Court can discern no reasonable possibility that this evidence would have changed the

21

ALJ’s decision. Conry’s motion is denied.

22
23

b. Conry waived any argument that the ALJ erred at step three of the
five-step process.

24

In her opening brief, Conry cites 20 C.F.R. § 404.1526, which explains how the

25

ALJ performs the analysis at step three of the five-step process. (Doc. 16 at 5, 21.) The

26

Commissioner and the Court understand this as a challenge to the ALJ’s step three

27

analysis. But the citations are unaccompanied by any legal argument or facts that would

28

support an argument that the ALJ erred at step three. The decision itself doesn’t provide

-3-

1

an obvious basis for an objection; the ALJ provided an extensive explanation of how she

2

evaluated Conry’s impairments using the “paragraph B” criteria. (AR. 23–24.) Because

3

the argument is undeveloped, the Court considers it waived. See Cruz v. Int’l Collection

4

Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We review only issues which are argued

5

specifically and distinctly in a party’s opening brief.”).

6
7

c. Both challenged evaluations of medical opinions are supported by
substantial evidence.

8

For claims filed on or after March 27, 2017, like Conry’s, ALJs give no specific

9

evidentiary weight to any medical opinion. 20 C.F.R. § 416.920c(a). Instead, an ALJ is

10

required to consider all medical opinions and articulate how persuasive she finds them.

11

Id. § 416.920c(b). The ALJ considers several factors in assessing the persuasiveness of a

12

medical opinion, but she need only articulate in her decision her findings regarding the

13

supportability and consistency of the opinion with other evidence in the record.

14

Id. § 416.920c(b)(2). Supportability examines the relevant objective medical evidence

15

and supporting explanations presented by the source. 20 C.F.R. § 404.1520c(c)(1).

16

Consistency examines the evidence from other medical and nonmedical sources.

17

20 C.F.R. § 404.1520c(c)(2).

18
19
20

Conry challenges the ALJ’s evaluations of opinions from a consultative examiner,
Glenn R. Kunsman, D.O. and Conry’s hand specialist, Carter B. Lipton, M.D.
i. Dr. Kunsman

21

The ALJ found Dr. Kunsman’s opinion somewhat persuasive. (AR. 34.) Dr.

22

Kunsman opined that Conry can lift and carry ten pounds frequently, can stand or walk

23

six to eight hours in an eight-hour workday, has no limitations on sitting, and can

24

frequently climb, balance, kneel, stoop, crouch, crawl, reach, handle, finger, and feel.

25

(AR. 702–03.) But the ALJ found that these limitations were not consistent with medical

26

evidence that indicated residual carpal tunnel syndrome (“CTS”) following surgery and

27

Conry’s hip and knee pain. (AR. 34.) And the ALJ highlighted the lack of support for Dr.

28

Kunsman’s opinions from his own treatment records. (Id.) For example, Dr. Kunsman’s

-4-

1

opinion stated that Conry had decreased grip strength, which was in direct opposition to

2

his observation that she had normal grip strength. (AR. 33, 699.) In any event, the ALJ’s

3

RFC determination was more limiting than Dr. Kunsman’s opinion, so any error in

4

assessing this opinion was harmless. Burch v. Barnhart¸ 400 F.3d 676, 679 (9th Cir.

5

2005) (“A decision of the ALJ will not be reversed for errors that are harmless.”); see

6

also Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995); Tommasetti v. Astrue,

7

533 F.3d 1035, 1038 (9th Cir. 2008).

8

ii. Dr. Lipton

9

The ALJ found Dr. Lipton’s opinions somewhat persuasive. (AR. 33.) Dr. Lipton

10

provided several different opinions about Conry’s limitations with differing degrees of

11

restrictions in each. (AR. 567, 572–75.) The ALJ subscribed to Dr. Lipton’s March 2019

12

opinion that Conry could lift and carry at least ten pounds frequently and could perform

13

six hours of repetitive activity for two hours at a time with a twenty-minute break in

14

between. (AR. 33, 567.) These limitations are consistent with Dr. Lipton’s findings of

15

improved hand strength and lack of persistent upper extremity sensory deficits following

16

operations on her hands. (AR. 582.) In fact, Dr. Lipton’s treatment notes showed

17

significant improvement in Conry’s hand strength between October 2018 and March

18

2019. (AR. 568, 575.) The ALJ also found that Dr. Lipton’s March 2019 opinion was

19

consistent with other evidence in the record, including Conry’s daily activities, “which

20

suggest an ability to use her hands for handling and fingering on a frequent basis.”

21

(AR. 34.)

22

The ALJ properly evaluated both the supportability and consistency of Dr.

23

Lipton’s opinions by comparing those opinions with Dr. Lipton’s treatment records and

24

other evidence in the record. In arguing otherwise, Conry points to a note from Dr. Lipton

25

on March 2019 that stated that Conry still experienced “mild residual symptoms related

26

to her [CTS] and based on the findings of her functional Capacity Exam, and based on

27

discussion with her, [Dr. Lipton] feel[s] that there will be permanent work restrictions.”

28

(AR. 568.) This note does not reveal a glaring lack of support for Dr. Lipton’s opinion,

-5-

1

nor does it appear that the ALJ ignored it. Dr. Lipton opined to work limitations resulting

2

from Conry’s impairments—specifically, limitations to accommodate CTS. The ALJ

3

incorporated those limitations to determine Conry’s RFC.

4

It may be the case that Dr. Lipton’s treatment note could support stricter

5

limitations, but that is not for this Court to decide. See Burch¸ 400 F.3d at 679 (“Where

6

evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion

7

that must be upheld.”). It is not the role of this Court to “substitute its judgment for that

8

of the [ALJ.]” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The ALJ properly

9

articulated how persuasive she found Dr. Lipton’s opinion, and her findings are supported

10

by substantial evidence.

11

d. The ALJ provided clear and convincing reasons supported by

12

substantial evidence for discrediting Conry’s testimony as to the

13

severity and persistence of her symptoms.

14

Proper evaluation of a claimant’s symptom testimony requires the ALJ to perform

15

a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the

16

ALJ evaluates whether the claimant has presented objective medical evidence of an

17

impairment that “could reasonably be expected to produce pain or other symptoms

18

alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2017). If the claimant

19

presents such evidence and absent evidence of malingering, the ALJ may reject the

20

claimant’s testimony as to the severity of her symptoms “by offering specific, clear and

21

convincing reasons for doing so.” Id.; Garrison, 759 F.3d at 1015.

22

The Court will uphold the ALJ’s decision so long as she has provided legally

23

sufficient reasons for rejecting the claimant’s testimony, even if the ALJ did not “clearly

24

link [her] determination to those reasons.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.

25

2001). “Even when an agency explains its decision with less than ideal clarity, a

26

reviewing court will not upset the decision on that account if the agency’s path may

27

reasonably be discerned.” Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497

28

(2004) (quotations and citation omitted).

-6-

1

Here, Conry testified that symptoms produced by her CTS precluded her from

2

working full time. (AR. 63–34.) She shared that she underwent surgical amputation of her

3

foot to create a pad at the end of her leg so that she could walk, but the stump is prone to

4

developing painful ulcers. (AR. 66, 68.) Further, her prosthetic leg causes knee and hip

5

pain. (AR. 68–69.) Conry stated that she can only stand or walk for forty-five minutes

6

before needing a break due to numbness and tingling in her hands and arms. (AR. 69.)

7

She can only type for thirty minutes before needing a rest due to the same numbness and

8

tingling. (AR. 69–70.) When she is not using medication for her depression, Conry

9

sometimes finds it difficult to get out of bed and move around. (AR. 73–74.)

10

The ALJ found that Conry’s symptom testimony was inconsistent with the

11

objective medical evidence, her positive response to treatment, and her reported daily

12

activities. Consideration of each of these factors in evaluating symptom testimony is

13

appropriate. Smartt v. Kijakazi, 53 F.4th 489, 498 (“When objective medical evidence in

14

the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed

15

weigh it as undercutting such testimony.”); Wellington v. Berryhill, 878 F.3d 867, 876

16

(9th Cir. 2017) (“[E]vidence of medical treatment successfully relieving symptoms can

17

undermine a claim of disability.”) Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219,

18

1227 (9th Cir. 2009) (“[A]n ALJ may weigh inconsistencies between the claimant’s

19

testimony and his or her conduct, daily activities, and work record, among other

20

factors.”).

21

Indeed, the objective medical evidence demonstrated that Conry had only mild

22

bilateral CTS and “no electrodiagnostic evidence of any other focal nerve entrapment,

23

brachial plexopathy, or cervical radiculopathy.” (AR. 623.) Repeat studies following

24

wrist surgery and injections showed significant improvement in her symptoms. (AR. 571,

25

591, 987, 1006.) X-rays of Conry’s wrists from March 2018 showed that her wrists were

26

“normal-appearing” aside from an abnormality of the pisiform in her right wrist and some

27

flattening of the radius in her left. (AR. 28, 607.) A consultative examiner determined

28

that Conry had normal grip strength and full strength in her upper extremities. (AR. 29,

-7-

1

699.) On examination, Conry exhibited normal fine motor skills; she was able to pick up

2

small coins from the ground and screw a nut into a bolt without difficulty. (AR. 29, 699.)

3

The ALJ also pointed to a January 2020 hip X-ray that was “essentially unremarkable.”

4

(AR. 941.)

5

The ALJ also highlighted Conry’s positive responses to treatment. (AR. 29.)

6

Conry underwent surgery on her wrists, and afterwards she reported feeling “markedly

7

better.” (AR. 29, 574.) Indeed, after surgery and post-operative occupational therapy,

8

Conry reported that she could type for up to two hours before experiencing discomfort.

9

(AR. 29, 574.) Conry has also taken gabapentin, hydrocodone, and methocarbamol,

10

which have improved her hip pain and the numbness and tingling in her hands. (AR. 29–

11

30, 566, 635.) On the other hand, the ALJ also properly noted instances where Conry

12

failed to follow her prescribed treatment plan. See Tommasetti v. Astrue, 533 F.3d 1035,

13

1039 (9th Cir. 2008) (“The ALJ may consider . . . unexplained or inadequately explained

14

failure to seek treatment or to follow a prescribed course of treatment.”) For example,

15

though her primary care provider continued to refill pain medication, Conry reported

16

using it “very sparingly.” (AR. 30, 1024.)

17

And the ALJ observed that Conry performs several independent daily activities,

18

including making art collages and attending community art classes, using a computer,

19

driving, preparing meals from scratch, and doing laundry. (AR. 31, 358–60, 366–67,

20

369–70, 444.) These activities “contradict claims of a totally debilitating impairment.”

21

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). The longitudinal record also

22

shows that Conry has dealt with many of her conditions from birth. She had her leg

23

amputated as a child and has been using a prosthetic leg for years; resulting hip and knee

24

pain have always accompanied her prosthesis use. (AR. 13.) Conry has congenital issues

25

with her hands and was born with shorter fingers, but she worked for years despite those

26

issues. (AR. 982.) The fact that Conry dealt with these conditions while maintaining

27

employment undercuts her claim that these conditions are disabling and preclude all

28

work. Given the ALJ’s consideration of the medical evidence, Conry’s treatment history,

-8-

1

and Conry’s daily activities, her evaluation of Conry’s symptom testimony was proper

2

and supported by substantial evidence.
IT IS ORDERED denying Claimant Dawn Marie Annett Conry’s motion for

3
4

leave to file supplemental documents (Doc. 23).

5

IT IS FURTHER ORDERED that the decision of the Administrative Law Judge

6

is AFFIRMED. The Clerk is directed to enter judgment accordingly and terminate this

7

case.

8

Dated this 24th day of September, 2024.

9
10
11
12
13

Douglas L. Rayes
Senior United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-