Evans v. Astrue

Filing 32

ORDER, Plaintiff's case is DISMISSED and the Clerk of Court shall enter judgment. The Commissioners decision is affirmed. Signed by Magistrate Judge D Thomas Ferraro on 9/25/13. (See attached PDF for complete information.) (KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Sylvia Lorraine Evans, 9 Plaintiff, 10 vs. 11 12 Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV-12-0504-TUC-DTF ORDER 14 Plaintiff Sylvia Evans brought this action pursuant to 42 U.S.C. § 405(g), seeking 15 judicial review of a final decision by the Commissioner of Social Security (Commissioner). 16 Before the Court are Plaintiff’s opening brief, Defendant’s Opposition and a Reply. (Docs. 17 24, 27, 30.) The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant 18 to 28 U.S.C. § 636(c)(1). (Docs. 9, 12.) The Court finds that Plaintiff is not entitled to relief. 19 PROCEDURAL HISTORY 20 On May 7, 2009, Evans filed applications for Supplemental Security Income (SSI) and 21 Disability Insurance Benefits (DIB). (Administrative Record (AR) 130, 133.) Evans alleged 22 disability from December 22, 2008. (AR 130, 133.) Evans’s applications were denied upon 23 initial review (AR 57-64) and on reconsideration (AR 68-74). A hearing was held on 24 November 8, 2010 (AR 26-52), after which ALJ Peter J. Baum found that Evans was not 25 disabled (AR 11-20). The Appeals Council denied Evans’s request to review the ALJ’s 26 decision. (AR 1.) 27 28 FACTUAL HISTORY 1 2 Evans was born on January 18, 1957, making her 51 at the alleged onset date of her 3 disability. (AR 130.) From 2003 to her alleged onset date, Evans worked for the Department 4 of Veterans Affairs as a nursing assistant. (AR 36, 140.) In late December 2008, Evans went 5 to urgent care for what she thought was bronchitis and ended up having surgery to repair her 6 aorta. (AR 345.) 7 The ALJ found that Plaintiff had four severe impairments: hypertension, status post 8 ascending aortic replacement and repair; depression; and anxiety. (AR 14.) The ALJ noted 9 that Evans was cleared by her cardiologist to return to full-time work less than a year after 10 her surgery, which also is documented in the unemployment records. (AR 18.) The ALJ 11 concluded Evans could perform light unskilled work. (AR 16.) At Step Four, the ALJ found 12 Evans could not do her past work as a nursing assistant, which was semi-skilled and a 13 medium exertion level. (AR 19.) However, based on the Medical-Vocational Guidelines, the 14 ALJ concluded at Step 5 that Plaintiff was not disabled and could do other work available 15 in the national economy. (AR 19.) 16 STANDARD OF REVIEW 17 The Commissioner employs a five-step sequential process to evaluate DIB and SSI 18 claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460- 19 462 (1983). To establish disability the claimant bears the burden of showing she (1) is not 20 working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals 21 the requirements of a listed impairment; and (4) claimant’s RFC precludes her from 22 performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the 23 burden shifts to the Commissioner to show that the claimant has the RFC to perform other 24 work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 25 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” 26 or “not disabled” at any point in the five-step process, he does not proceed to the next step. 27 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 28 -2- 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 3 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the 4 Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. 5 § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 7 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only 8 “when the ALJ’s findings are based on legal error or are not supported by substantial 9 evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 10 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the 11 evidence, and if the evidence can support either outcome, the court may not substitute its 12 judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 13 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 14 2004). The Commissioner’s decision, however, “cannot be affirmed simply by isolating a 15 specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 16 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must 17 consider the evidence that supports as well as detracts from the Commissioner’s conclusion. 18 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 19 DISCUSSION 20 Evans alleges the ALJ committed four errors, that he: failed to properly evaluate the 21 opinions of Evans’s treating providers; failed to properly evaluate lay witness testimony; 22 failed to properly evaluate Evans’s credibility; and improperly considered the vocational 23 guidelines and should have had a vocational expert testify. 24 Treating Providers 25 Plaintiff argues the ALJ failed to give appropriate weight to the opinions of her 26 treating medical professionals. She argues the ALJ’s rejection of the opinions of Dr. Iyengar, 27 28 -3- 1 Dr. Quint and a portion of the opinion of Dr. Rau are not supported by substantial evidence.1 2 Plaintiff argues the ALJ ignored Dr. Iyengar’s opinion that Evans was limited to 3 lifting 15 to 20 pounds. The record contradicts this assertion. In August 2009, Dr. Iyengar 4 released Evans for part-time work with a limitation of lifting no more than 15-20 pounds. 5 (AR 548, 660.) However, by early December 2009, Dr. Iyengar released Evans to work full 6 time “as she chooses” with no restrictions. (AR 280, 644-45.) The ALJ cited this opinion in 7 his decision. (AR 18.) Further, the ALJ ultimately concluded that Evans was limited to light 8 work, which involves lifting no more than 20 pounds at a time with frequent lifting of items 9 weighing no more than 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). This conclusion 10 is compatible with Dr. Iyengar’s opinion from December 2009, as well as his lifting 11 restrictions from August 2009. Because the ALJ did not reject the opinion of Dr. Iyengar, and 12 the doctor offered no opinion that contradicted the ALJ’s decision, this argument is 13 unfounded. Additionally, the Court notes there are no medical opinions in the record that 14 contradict Dr. Iyengar’s opinion or the RFC as found by the ALJ. 15 Plaintiff also argues that the ALJ ignored the opinion of Dr. Quint, that Evans could 16 not be on her feet for periods of time. In the one record from Dr. Quint, he provided no 17 opinion on Evans’s ability with respect to standing, walking or other work functions. Rather, 18 he noted as background that Evans reported an inability to stand or walk for any period of 19 time. (AR 637.) He provided treatment and recommended a consideration of surgical 20 intervention if his conservative recommendations did not resolve the matter. (AR 638.) There 21 are no other records indicating that Evans sought further treatment. In short, Dr. Quint did 22 not express an opinion about Evans’s ability to sit, walk or stand upon which the ALJ could 23 have relied. Additionally, there are no treating medical records regarding Plaintiff’s ability 24 to stand or walk. 25 26 27 28 1 Plaintiff also argues that the doctors at COPE found “problems.” (Doc. 24 at 9.) However, because Evans makes no argument based on a medical opinion of anyone from COPE, the Court does not address those records nor the assertion of unspecified problems as to this claim. -4- 1 Finally, Plaintiff argues the ALJ ignored the opinion of Dr. Rau that Evans would 2 have episodic problems because of her condition that would interfere with her ability to 3 function.2 Again, the record shows otherwise. Dr. Rau opined that Plaintiff’s “understanding 4 and memory abilities are reasonable and not significantly limited. Episodically, she probably 5 will have some difficulty effectively registering information because of an immediate episode 6 of depression or anxiety or distress.” (AR 601.)3 The ALJ gave great weight to the opinion 7 of Dr. Rau and accepted his finding that she was moderately limited in her ability to sustain 8 concentration and persistence. (AR 15, 18.) Because the ALJ did not reject the opinion of Dr. 9 Rau, there is no factual basis for Plaintiff’s argument on this point. 10 Further, Dr. Rau did not provide an opinion on Evan’s mental RFC in light of the 11 limitations he identified. However, Dr. Andrew Kerns, non-examining reviewing 12 psychologist did opine on Evan’s RFC after reviewing the opinion of Dr. Rau and adopting 13 similar limitations. He ultimately concluded that Evans could do unskilled work (AR 16); 14 there are no opinions to the contrary. The ALJ adopted this singular conclusion in his RFC 15 finding; this was not error and was supported by substantial record evidence. See Stubbs- 16 Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (upholding ALJ’s RFC which 17 was based on the only doctor to translate the claimant’s limitations to concrete restrictions 18 on ability to perform basic work activities). 19 Plaintiff’s Credibility 20 The ALJ found Plaintiff’s statements concerning the severity of her symptoms not 21 credible to the extent inconsistent with the ALJ’s RFC finding. (AR 17.) In general, 22 “questions of credibility and resolution of conflicts in the testimony are functions solely” for 23 2 24 25 26 In her discussion of this claim, Plaintiff indicates she had been designated seriously mentally ill (SMI), which entitles a person to specific benefits from the Arizona Department of Health Services. To the contrary, the records from COPE indicate that, upon review, it was determined that Plaintiff did not satisfy this criteria. (AR 671, 743.) 3 27 28 In support of this argument Plaintiff cites to a portion of a Mental Residual Functional Capacity Assessment conducted by non-examining psychologist Andres Kerns, not to the opinion of Dr. Rau. (Doc. 24 at 10 (citing AR 605).) -5- 1 the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 2 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an ALJ may certainly find testimony 3 not credible and disregard it . . . [the court] cannot affirm such a determination unless it is 4 supported by specific findings and reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 5 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring 6 specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant’s 7 subjective testimony); SSR 96-7p. “To determine whether a claimant’s testimony regarding 8 subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” 9 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 10 “First, the ALJ must determine whether the claimant has presented objective medical 11 evidence of an underlying impairment ‘which could reasonably be expected to produce the 12 pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell, 947 F.2d at 344). ALJ Baum 13 found Evans had satisfied part one of the test by proving an impairment that could produce 14 the symptoms alleged. (AR 16.) Second, if “there is no affirmative evidence of malingering, 15 the ALJ can reject the claimant’s testimony about the severity of her symptoms only by 16 offering specific, clear and convincing reasons for doing so.” Tommasetti v. Astrue, 533 F.3d 17 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 18 1996)). The ALJ did not find, and the record does not reveal, any evidence of malingering; 19 therefore, to support his discounting of Evan’s credibility regarding the severity of her 20 symptoms, the ALJ had to provide clear and convincing, specific reasons. See Vasquez v. 21 Astrue, 572 F.3d 586, 592 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036). 22 The ALJ’s concluded that Evans was not entirely credible because the objective 23 medical evidence did not support the level of impairment alleged by Evans. (AR 19.) He also 24 relied upon the fact that, during the period she alleges she was disabled, she concluded she 25 could work full-time at a sit-down job and she was seeking that type of work. (Id.) 26 Plaintiff argues that all of the medical evidence and the opinions of her treating 27 doctors support her credibility and her subjective complaints and the ALJ erred in not taking 28 this evidence into account. The Court disagrees. At her request (AR 16, 24), Plaintiff’s -6- 1 treating cardiologist released her to full-time work in early December 2009. This was less 2 than a year after she had to stop work due to her heart surgery. At that time, December 2, 3 2009, her cardiologist concluded her blood pressure was under excellent control with 4 medication. (AR 654.) In the following weeks, her primary care physician (Dr. Miller) 5 recorded some high blood pressure readings, one of which he concluded might be due to 6 dental pain and a muscle spasm she was experiencing at that time. (AR 770-71, 773.) Dr. 7 Miller increased one of her medications for hypertension and referred her back to Dr. 8 Iyengar. (AR 771.) Evans reported to Dr. Iyengar that her home readings had been normal 9 since the increase in medication and they were normal at his office on December 29, 2009, 10 a rental artery ultrasound showed no significant stenosis, and Dr. Miller concluded her blood 11 pressure again was controlled as of January 12, 2010. (AR 657-58, 768.) Evans saw Dr. 12 Iyengar again in August 2010, at which time her blood pressure was normal, she reported no 13 symptoms of angina, congestive heart failure, palpitations or syncope. (AR 661-62.) She 14 reported that she still was looking for work but keeping busy by exercising. (Id.) At a 15 primary care preventative appointment in October 2010, her blood pressure was a bit 16 elevated but the nurse practitioner merely suggested they monitor it and that she change her 17 diet. (AR 765.) The following month at a well woman exam, her blood pressure was again 18 elevated but Evans reported that she did not take her medication that morning. (AR 749.) She 19 did not report any other issues at that time. (AR 749-53.) 20 With respect to foot pain, she saw a podiatrist one time. Dr. Quint provided 21 conservative treatment in November 2009. (AR 637-38.) He indicated that if the suggested 22 treatment did not remedy the problem, surgery could be considered. (AR 638.) Dr. Quint did 23 not restrict her activities or opine on her functional abilities. (AR 637-38.) There are no 24 subsequent records regarding foot pain or treatment for any foot impairment. 25 Regarding Evans’s mental health there are limited records. She began treatment at 26 COPE in September 2009, at which time she was diagnosed with depression NOS and 27 anxiety NOS. (AR 585.) The records document Evans attending one subsequent therapeutic 28 appointment at COPE, in December 2009, at which the nurse practitioner recorded her -7- 1 diagnostic impression that Evans had moderate depression and she prescribed Sertraline. (AR 2 724.) Subsequent file notes from her case manager indicate she was doing ok and was stable, 3 but Evans attended no further therapy appointments before she was discontinued from 4 treatment and medication in April 2010 due to being denied AHCCCS for a period of time. 5 (AR 728, 732, 737, 744.) At that time, her assigned nurse practitioner concluded she did not 6 meet the criteria for serious mental illness under the Arizona Department of Health Services 7 criteria. (AR 670-71.) In making this assessment she declined to find that, for a period of 8 twelve months, Evans satisfied one of three necessary criteria, that she be unable to live in 9 an independent or family setting without supervision; a risk of serious harm to herself or 10 others; or unable to perform the present major role function in society – school, work, 11 parenting or other developmentally appropriate responsibility. (Id.) After examining her, Dr. 12 Rau found her to have some moderate limitations, that would surface episodically, but no 13 marked limitations; he did not offer an opinion that she was unable to perform basic work 14 functions. (AR 601.) Psychologist Kerns, upon reviewing the records, concluded that Dr. 15 Rau’s assessment and his own findings would allow Evans to perform unskilled work. (AR 16 620.) 17 The objective medical evidence is one clear and convincing reason to discount 18 Plaintiff’s credibility. As summarized by the ALJ, the record evidence demonstrates that 19 Evans had recovered from her surgery sufficiently to work full-time within one calendar year 20 and that her blood pressure was generally well-controlled with medication. Further, there are 21 no medical opinions indicating her mental health issues were so severe as to prevent her from 22 working. 23 Although the objective medical evidence is not a sufficient reason standing alone to 24 discount her credibility, SSR 96-7p; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 25 1997), the ALJ also cited Evans’s unemployment documents and her testimony about her 26 unemployed status. Specifically, during the time she asserts she was disabled she obtained 27 unemployment on the ground that she was able to work and was looking for work. In both 28 August and December 2009, Evans asked her cardiologist to certify her as able to work and -8- 1 he did, releasing her to work initially part-time and then full time. (AR 660, 280.) From 2 December 11, 2009, to November 14, 2010, Evans averred for purposes of unemployment 3 that she was able to work and looking for work. (AR 225-74.) In August 2010, she told Dr. 4 Iyengar that she was continuing to look for employment. (AR 661.) At the hearing, she 5 affirmed that she told the unemployment office she could work as of December 2009, and 6 she had been looking for employment since then. (AR 42-43.) In light of this substantial 7 record evidence, this was a clear and convincing reasons to discount Evans’s credibility. 8 The Court finds the ALJ did not error in his treatment of Plaintiff’s credibility. 9 Lay Witness Testimony 10 11 Plaintiff argues the ALJ erred in rejecting the testimony of Plaintiff’s daughters, Felicia and Cynthia Greenhouse. 12 Felicia Greenhouse completed a function report in June 2009, in which she reported 13 that Evans would feed and take Felicia’s dog on short walks, prepare easy foods, sweep, do 14 dishes and laundry, iron, vacuum, and shop. (AR 167, 168, 169.) She noted that Evans 15 needed help to prepare full meals or if there were a lot of dishes or laundry. (AR 168.) Evans 16 had difficulty doing her hair because her right arm was still hurting from the surgery. (AR 17 167.) Felicia reported that Evans would spend time with family but she had withdrawn quite 18 a bit. (AR 170, 171.) Felicia stated that Evans could not lift more than 20 pounds and could 19 only walk a block or up a half flight of stairs without resting. (AR 171.) She also reported 20 that Evans was unable to follow instructions well. (Id.) 21 Cynthia Greenhouse completed a function report in October 2009, in which she 22 reported that Evans could do her personal care but had difficulties raising her right arm. (AR 23 193.) Cynthia reported that Evans prepared little food and did not eat much due to 24 depression, that she would do laundry and small chores but could not lift anything heavy or 25 vacuum. (AR 194.) Cynthia indicated that Evans would sit in the house all day due to 26 depression and anxiety and do hardly any activity. (AR 192, 195, 196.) Cynthia indicated that 27 Evans could not lift more than 10 pounds or walk more than 3 blocks, and that she had 28 difficulty with instructions and complicated conversations. (AR 197.) -9- 1 The ALJ discounted this evidence because the witnesses are not medically trained and, 2 therefore, their observations are questionable; they are not disinterested parties due to their 3 familial relationship with Evans; and because their testimony is not consistent with the 4 doctors’ opinions and observations in the record. (AR 18-19.) ALJs must consider lay 5 witness testimony and rejection of lay testimony requires reasons specific to each witness. 6 Stout v. Comm’r, Social Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). The first two 7 reasons provided by the ALJ for the rejection are legally insufficient. First, neither of the 8 witnesses purported to provide testimony on their mother’s medical signs and symptoms; 9 rather, they reported their day-to-day observations of her activities and abilities. Second, the 10 regulations provide that, when evaluating a claimant’s impairments and how they affect her 11 ability to work, the ALJ will consider evidence from non-medical sources, such as family, 12 caregivers and friends. 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4). The evidence cannot be 13 rejected simply because it is provided by the sources identified in the regulations, non- 14 medical persons with a relationship to the claimant. See Dodrill v. Shalala, 12 F.3d 915, 918- 15 19 (9th Cir. 1993) (family members in a position to observe the claimant’s symptoms and 16 activities are competent to testify as to his impairments); Valentine v. Comm’r Social. Sec. 17 Admin., 574 F.3d 685, 694 (9th Cir. 2009) (discounting family members’ testimony on the 18 basis of that relationship is an insufficiently broad rationale). 19 However, the ALJ’s third reason, that the testimony was inconsistent with the medical 20 opinions and observations of record, is supported by substantial evidence. As discussed 21 extensively above, the only medical opinions in the record state that Evans could work full- 22 time doing light, unskilled work, as of December 2009. In fact, Evans requested a work 23 release at that time. The daughter’s testimony focuses primarily on Evans’s mental health but 24 no mental health opinions stated that Evans could not work as of December 2009. Evans was 25 determined not to be seriously mentally ill by her mental health agency in April 2010, and 26 the only record opinions reveal that she had at most moderate limitations in select areas. 27 Based on review of the record in entirety, there is substantial record evidence to support the 28 ALJ’s finding that Cynthia and Felicia Greenhouse’s opinions are inconsistent with the - 10 - 1 evidence of record. 2 Additionally, the Court finds that any error in this area was harmless. The June 2009 3 statement by Felicia was provided months before Evans began mental health treatment and 4 6-months prior to the doctors and the ALJ’s finding that Evans could work. Therefore, it has 5 limited relevance to Evans’s ability to work beginning in December 2009, and, even if 6 credited would not change the analysis. See Molina v. Astrue, 674 F.3d1104, 1115 (9th Cir. 7 2012) (observing that the Court may find an error harmless if it is “inconsequential to the 8 ultimate nondisability determination.” ) (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 9 F.3d 1155, 1162 (9th Cir. 2008)). Similarly, Cynthia’s statement is from October 2009, just 10 after Evans had her first appointment at COPE and 2 months prior to her being cleared to 11 work and beginning medication for depression. In November 2009, shortly after Cynthia 12 completed the function report, Evans and one of her daughters reported similar symptoms 13 and activities to Dr. Rau. Based on that information and his testing, he concluded she had 14 mild to moderate limitations but nothing more severe. (AR 597-601.) Any error regarding 15 her testimony is harmless because the Court “confidently conclude[s] that no reasonable ALJ, 16 when fully crediting the testimony, could have reached a different disability determination.” 17 Stout, 454 F.3d at 1056. 18 Vocational Testimony 19 Plaintiff frames her last claim as one having to do with whether vocational testimony 20 was necessary and whether the Commissioner carried her burden at Step Five. However, her 21 contention actually seems to be that the RFC as found by the ALJ was not based on 22 substantial record evidence and is erroneous. Thus, she argues, if the RFC was accurate, she 23 would have been found disabled at Step Five. 24 Evans argues that the ALJ erred in his RFC finding because he failed to take into 25 account her problems in walking and using her arm, her psychiatric problems, and her 26 increased blood pressure with activity and stress. As discussed above, there are no medical 27 opinions or records substantiating Plaintiff’s assertion that she cannot do light work due to 28 issues with her feet and right arm. Plaintiff sought a referral to a podiatrist and went to one - 11 - 1 appointment at which she received conservative treatment. There are no additional records 2 or opinions indicating that she is restricted from walking or standing a good portion of the 3 day. Consulting physician Dr. Maloney concluded she could stand or walk for up to 6 hours 4 per day, which allows for light work. (AR 533.) Dr. Iyengar imposed no restrictions on 5 standing or walking. (AR 280.) In the months post-surgery, the records indicate Plaintiff 6 reported right arm pain. (AR 500, 501, 778-79.) Evans points to an appointment on 7 December 9, 2009, at which she presented with a right upper pole trapezius spasm. (AR 773.) 8 This was a singular event, for which there is no follow-up or indication in the records that 9 it was not resolved.4 After Plaintiff was cleared to work on December 14, 2009 (AR 280, 10 655), there are no records documenting any issues with her right arm. Again, Dr. Iyengar 11 imposed no restrictions on the use of her right arm, nor did any other doctor in the period 12 after December 2009. 13 With respect to her blood pressure, again, Dr. Iyengar did not impose any limitations 14 on her work based on this impairment. At the time he released her to work she reported 15 exercising regularly and her blood pressure was under control. (AR 654.) To the extent 16 Plaintiff’s blood pressure was elevated during doctor’s appointments in late December 2009, 17 or after, this was not attributed to a particular activity or stress level. Further, when her 18 primary care physician increased one of her medications the issue quickly was resolved. (AR 19 768.) In August 2010, Evans reported no cardiac symptoms and told Dr. Iyengar that she was 20 keeping herself busy with regular exercise. (AR 661.) In October and November 2010, Evans 21 again reported exercising regularly. (AR 750, 763.) 22 The Court has reviewed the issues Plaintiff argues undermine the ALJ’s RFC finding 23 that she could do light work and finds the record does not support her contention. More 24 25 26 27 28 4 Evans relies on a record from October 26, 2010, which includes muscle spasm in the list of current problems. (AR 761.) However, all of Evans prior problems are re-stated in the current problems list. Further, nothing else in the 6-page record addresses a muscle spasm, no treatment was provided for such a symptom, and the systems review states no back, neck, joint or muscle pain. (AR 761-66.) - 12 - 1 importantly, upon review of the entirety of the record, the Court finds the ALJ’s RFC finding 2 regarding Evans’s exertional abilities is supported by substantial evidence. 3 The Court also reviews Evans’s arguments regarding her psychological issues that she 4 contends the ALJ failed to account for in his ruling. The ALJ concluded Plaintiff could do 5 only unskilled work, based on her psychological impairments of depression and anxiety. 6 Evans relies primarily on the opinions of Drs. Rau and Kerns to support this argument. Both 7 of them found some moderate impairments but neither one concluded she could not work 8 with those limitations. (AR 600-01, 604-06.) To the contrary, Dr. Kerns concluded, after 9 reviewing the examination of Dr. Rau and Plaintiff’s records from COPE, that she could 10 perform unskilled work on a competitive basis. (AR 606, 621.) Plaintiff cites every limitation 11 noted by Drs. Rau and Kerns but does not acknowledge Dr. Kerns’s ultimate conclusion that 12 with those limitations Evans could perform unskilled work. See Atkinson v. Astrue, 389 Fed. 13 App’x 804, 808 (10th Cir. 2010) (upholding RFC based on a doctor’s opinion that claimant 14 could perform non-complex work although ALJ did not discuss each limitation found by that 15 doctor); see also Johansen v. Barnhart, 314 F.3d 283, 289 (7th Cir. 2002) (finding 16 substantial evidence to support ALJ’s mental RFC when he relied upon the only medical 17 expert that provided an opinion on that subject even if others found more significant 18 limitations). There are no contrary medical opinions in the record. The nurse practitioner who 19 saw Evans at COPE diagnosed her with moderate depression and concluded she did not meet 20 the criteria for serious mental illness. (AR 671, 724.) There is substantial record evidence to 21 support the ALJ’s finding that Evans could do unskilled work. 22 The Court finds the ALJ did not err regarding Evans’s RFC. Plaintiff does not argue 23 that, accepting the ALJ’s RFC as accurate, there was error at Step Five. Further, as cited by 24 the ALJ, a person of Evans’s age, education, RFC and with an ability to do unskilled work, 25 is not disabled under the Medical-Vocational Guidelines. 20 C.F.R. Part 404, Subpart P, 26 App.2, Rule 202.11 Therefore, the Court finds no error as to Claim 4. 27 28 - 13 - 1 CONCLUSION 2 A federal court may affirm, modify, reverse, or remand a social security case. 42 3 U.S.C. § 405(g). To qualify for disability, a claimant’s impairment must have lasted or must 4 be expected to last for a continuous period of at least 12 months.” 20 C.F.R. §§ 404.1509(a), 5 416.909(a). The ALJ found that Plaintiff had serious impairments, however, they did not 6 prevent her from working for a continuous 12 month period. Plaintiff has not established that 7 the ALJ erred in his decision and the Court finds that his opinion is supported by substantial 8 evidence. Therefore, the Commissioner’s decision is affirmed. 9 10 11 12 Accordingly, IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court shall enter judgment. DATED this 25th day of September, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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