(SS) Marez v. Commissioner of Social Security

Filing 19

ORDER on Plaintiff's Social Security Complaint 1 signed by Magistrate Judge Sheila K. Oberto on 2/6/2024. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 5 6 7 Case No.: 1:22-cv-01354-SKO ELVIA DANNETTE MAREZ, 8 ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT Plaintiff, 9 v. (Doc. 1) MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY,1 10 11 Defendant. 12 13 14 I. INTRODUCTION 15 Plaintiff Elvia Marez (“Plaintiff”) seeks judicial review of a final decision of the 16 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application 17 for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 18 1). The matter is currently before the Court on the parties’ briefs, which were submitted, without 19 oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 20 21 II. BACKGROUND 22 Plaintiff was born on September 5, 1979. (Administrative Record (“AR”) 35). She filed a 23 claim for DIB on July 24, 2017, alleging a disability onset date of February 1, 2005. (AR 15). In 24 her application, she alleged a herniated disc, depression, anxiety, osteoarthritis, sciatica, and a 25 26 27 28 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 2 The parties have consented to the jurisdiction of the U.S. Magistrate Judge. (See Doc. 10). 1 1 fractured left knee/meniscus. (AR 426). Plaintiff has completed two years of college and 2 previously worked as a home health aide, though she had no full-time employment for roughly 15 3 years before her application. (AR 426-27). Plaintiff’s carpal tunnel syndrome is the impairment relevant to her appeal. 4 3 Plaintiff 5 sought treatment in an emergency room in March 2017 after she was hit by the side view mirror of 6 a car while riding a bike. (AR 611). Upon examination, healthcare providers found a laceration 7 on her left hand, a decreased range of motion in her left shoulder, and some tingling in her pinky 8 on her left hand. (AR 611-12). Plaintiff then reported numbness in her left hand and fifth finger 9 two months later at a follow-up appointment. (AR 652). Her range of motion and coordination 10 was intact, though she had decreased sensation in the fifth finger. (AR 652). On September 26, 11 2017, state agency consultant I. Ocrant, M.D., evaluated Plaintiff’s claim at the initial level. (AR 12 174). Dr. Ocrant found Plaintiff’s carpal tunnel syndrome to be a non-severe impairment and 13 assigned Plaintiff no manipulative limitations. (AR 174). A second state agency consultant, A. 14 Nasrabadi, M.D., found Plaintiff not disabled and assigned her no manipulative limitations on 15 March 15, 2018. (AR 194). 16 On July 11, 2019, Plaintiff again reported numbness and tingling sensation, this time in her 17 right wrist and both hands. (AR 907). While she displayed a normal range of motion in her wrist, 18 normal sensation, normal tendon function and normal grip strength, Phalen’s and Tinel’s signs were 19 positive for carpal tunnel syndrome. 20 occupational therapy and suggested Plaintiff wear a soft wristlet splint during the day and a hard 21 wristlet split at night. (AR 907). She received bilateral carpal tunnel injections on July 19, 2019. 22 (AR 902.) Physical therapy notes indicate Plaintiff had a decreased range of motion and grip 23 strength in her hands in August 2019. (AR 915-919). (AR 906-08). Anne A. White, FNP, prescribed her 24 An August 22, 2019, a nerve conduction and EMG study found evidence of severe 25 compression neuropathy (carpal tunnel syndrome) of the median nerves across the wrist. (AR 910). 26 Plaintiff underwent left carpal tunnel release, partial synovectomy, and a left/hand wrist regional 27 nerve block in January 2020. (AR 923-25). On July 14, 2020, she reported her hand “[felt] so 28 3 Because the parties are familiar with the medical evidence, it is summarized only to the extent necessary. 2 1 much better,” though she still had pain in her palm. (AR 1081). The pain in her palm subsided to 2 the point where she could wash dishes and do laundry. (AR 1118). Plaintiff underwent surgery on 3 her right hand (a right carpal tunnel release with incision of transverse ligament, partial 4 synovectomy, and right-hand wrist regional nerve block) on May 29, 2020. (AR 965). At a June 5 2020 follow-up, she noted her incision was sore and the pain in her hand was worsening. (AR 950). 6 On July 27, 2020, Plaintiff had made progress in her range of motion, grip and pinch strength, 7 though she still had pain in her palm and hypersensitivity on the scar. (AR 1108). At a September 8 15, 2020, occupational therapy appointment, she reported continuing pain in her palm shooting to 9 her forearm. (AR 1081). 10 On August 7, 2021, Plaintiff underwent an orthopedic consultative evaluation with Dale 11 Van Kirk, M.D. (AR 933). Dr. Van Kirk noted a full range of motion in her wrists without pain 12 or difficulty. (AR 936). Dr. Van Kirk also noted various tests for carpal tunnel were negative and 13 assigned Plaintiff no manipulative limitations. (AR 936-37). 14 Plaintiff testified at the January 2022 administrative hearing that her carpal tunnel syndrome 15 limits her daily activities. (See AR 88-114). Plaintiff testified pain in her hands and back prevented 16 her from working. (AR 93). She noted that before her surgeries, she had pain, stiffness, swelling 17 and a loss of strength in both hands. (AR 95). After surgery, the pain improved, but gripping and 18 her hand strength worsened. (AR 96). She testified that she could drive short distances, as she 19 could not hold a steering wheel for more than 20 minutes. (AR 96-97). Physical therapy “help 20 significantly with the pain” in her hands but not her finger strength. (AR 104). 21 The Commissioner denied Plaintiff’s application for benefits initially on November 7, 2017, 22 and again upon reconsideration on March 16, 2018. (AR 202). Plaintiff requested a telephonic 23 hearing before an Administrative Law Judge (an “ALJ”), and the parties attended a hearing on 24 October 24, 2019. (AR 202). In a decision dated January 15, 2020, the ALJ found that Plaintiff 25 was not disabled as defined by the Act after conducting the five-step disability analysis set forth in 26 20 C.F.R. § 404.1520. (AR 214). Plaintiff appealed to the Appeals Council, and on October 5, 27 2020, the Council remanded the decision to an ALJ to further assess Plaintiff’s bilateral carpal 28 tunnel syndrome. (AR 222). 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 In support of the residual functional capacity in this regard, the decision, page 10, states that the clamant displayed normal range of motion and full grip strength. The decision further states that no surgery was ever considered for her condition, suggesting that her doctors did not find her impairment significant enough to warrant surgical intervention. However, regarding the former point, physical therapy records document decreased range of motion and pinch strength in August 2019 (Exhibit C18F, pages 2 to 3). Regarding the latter point, the claimant was referred for hand surgery in June 2019 (Exhibit C13F, page 46). Additional evidence received at the Appeals Council indicates the claimant underwent left carpal tunnel release, partial synovectomy, and a left/hand wrist regional nerve block in January 2020. (AR 222). Upon remand, the Appeals Council directed the ALJ to do the following: Obtain additional evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence. Further evaluate the claimant's alleged symptoms and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 416.929). Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the medical source opinion(s) pursuant to the provisions of 20 CFR 416.920c. As appropriate, the Administrative Law Judge may request the medical sources provide additional evidence and/or further clarification of the opinions (20 CFR 416.920b). The Administrative Law Judge may enlist the aid and cooperation of the claimant's representative in developing evidence from the claimant's medical sources. (AR 222-23). An ALJ held a second hearing on January 18, 2022. (AR 86-114). In a decision dated 20 March 1, 2022, the ALJ found that Plaintiff was not disabled as defined by the Act after 21 conducting the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 15-44). At 22 step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 24, 23 2017 (step one). (AR 18). At step two, the ALJ found that Plaintiff suffers from the following 24 severe impairments: degenerative disc disease of the lumbar spine; diabetes mellitus; and obesity. 25 (AR 18). Plaintiff did not have an impairment or combination of impairments that met or 26 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 27 (“the Listings”) (step three). (AR 18). 28 4 1 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the 2 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 3 to step four, we assess your residual functional capacity . . . . We use this residual functional 4 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 5 The ALJ found Plaintiff could do the following: lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit about 6 hours in an 8-hour workday with normal breaks; and stand and/or walk 4 hours in an 8hour workday with normal breaks (20 CFR 416.967). The claimant is frequently able to operate foot controls with the bilateral lower extremities. The claimant is occasionally able to push and pull with the upper and lower extremities, and is occasionally able to climb ramps and stairs. The claimant should never climb ladders, ropes, or scaffolds. The claimant is never able to crawl or crouch. The claimant is occasionally able to balance, kneel, and stoop. The claimant is frequently able to reach overhead with the right upper extremity. The claimant should not work in environments subjecting her to concentrated exposure to extreme cold or warm temperatures or humidity and/or wetness. 6 7 8 9 10 11 12 (AR 26). 13 14 15 16 17 18 19 20 At steps four and five, the ALJ found that the transferability of job skills was not at issue because Plaintiff had no relevant past work. (AR 35). The ALJ concluded that considering her age, education, work experience and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (AR 35). testimony of the Vocational Expert (“VE”), who testified Plaintiff could perform the following jobs: information clerk (Dictionary of Occupational Titles (“DOT”) 237.367-046); accounting clerk (DOT 219.587-010)5; and hand packager (DOT 559.687-014). (AR 36). The ALJ concluded Plaintiff was not disabled under the Social Security Act. (AR 36). 21 22 The ALJ based this finding on the Plaintiff sought review of this decision before the Appeals Council, which denied review on August 17, 2022. (AR 1). Therefore, the ALJ’s decision became the final decision of the 23 24 25 26 27 28 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 5 The ALJ referred to this job as a “laundry worker,” but the title of the position in the DOT is “laundry laborer.” DOT, available at 1991 WL 672992. 4 5 1 Commissioner. 20 C.F.R. § 404.981. 2 III. 3 4 A. LEGAL STANDARDS Applicable Law 5 An individual is considered “disabled” for purposes of disability benefits if he or she is 6 unable “to engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which has lasted or can 8 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 9 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 10 mental impairment or impairments are of such severity that he is not only unable to do [their] 11 previous work but cannot, considering [their] age, education, and work experience, engage in any 12 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 13 “The Social Security Regulations set out a five-step sequential process for determining 14 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 15 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 16 the following description of the sequential evaluation analysis: 17 18 19 20 21 22 23 24 25 26 27 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). “The claimant carries the initial burden of proving a disability in steps one through four of 28 6 1 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 2 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 3 shifts to the Commissioner in step five to show that the claimant can perform other substantial 4 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 5 B. Scope of Review 6 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 7 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 8 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 9 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 10 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 11 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 12 1141, 1154 (9th Cir. 2020). 13 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 14 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 15 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 16 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 17 evidence is susceptible to more than one rational interpretation.” 18 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one 19 rational interpretation, the court may not substitute its judgment for that of the Commissioner.” 20 (citations omitted)). Id.; see, e.g., Edlund v. 21 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 22 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 23 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 24 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 25 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 26 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 27 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 28 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 7 1 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 2 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 3 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 4 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 5 IV. 6 DISCUSSION 7 Plaintiff contends the ALJ erred at step two of the analysis by failing to assess Plaintiff’s 8 carpal tunnel syndrome as a severe impairment and then failing to account for related manipulative 9 limitations at steps four and five. (Doc. 15 at 24). For the reasons below, the Court finds the ALJ 10 11 did not err, and thus, reversal is not warranted. A. Legal Standard 12 “At step two of the five-step sequential inquiry, the Commissioner determines whether the 13 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 14 80 F.3d 1273, 1289–90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987)). 15 “[A]t the step two inquiry, . . . the ALJ must consider the combined effect of all of the claimant’s 16 impairments on her ability to function, without regard to whether each alone was sufficiently 17 severe.” Smolen, 80 F.3d at 1290 (citing 42 U.S.C. § 423(d)(2)(B) and TITLES II & XVI: THE 18 SEQUENTIAL EVALUATION PROCESS, Social Security Ruling (“SSR”) 86-8 (S.S.A. 1986)). 19 “‘[A]n impairment is not severe if it does not significantly limit [the claimant’s] . . . ability 20 to do basic work activities.’” Smolen, 80 F.3d at 1290 (citing 20 C.F.R. §§ 404.1520(c) & 21 404.1521(a)). “[B]asic work activities are the abilities and aptitudes necessary to do most jobs.” 22 TITLES II & XVI: MED. IMPAIRMENTS THAT ARE NOT SEVERE, SSR 85-28 (S.S.A. 1985). Examples 23 of “basic work activities” include (1) “[p]hysical functions such as walking, standing, sitting, 24 lifting, pushing, pulling, reaching, carrying, or handling;” (2) “[c]apacities for seeing, hearing, and 25 speaking;” (3) “[u]nderstanding, carrying out, and remembering simple instructions;” (4) “[u]se of 26 judgment;” (5) “[r]esponding appropriately to supervision, co-workers and usual work situations;” 27 and (6) “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922(b). 28 8 1 “An impairment or combination of impairments can be found ‘not severe’ only if the 2 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 3 [individual’s] ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85–28). Additionally, “an 4 ALJ may find that a claimant lacks a medically severe impairment or combination of impairments 5 only when his conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 6 F.3d 683, 687 (9th Cir. 2005) (citing SSR 85–28); cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th 7 Cir. 2005) (finding that the claimant “failed to meet his burden of establishing disability” where 8 “none of the medical opinions included a finding of impairment, a diagnosis, or objective test 9 results”). 10 “Great care should be exercised in applying the not severe impairment concept.” SSR 85– 11 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect 12 of an impairment or combination of impairments on the individual’s ability to do basic work 13 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 14 433 F.3d at 687 (alteration in original) (quoting SSR 85–28). Ultimately, “[t]he severity regulation increases the efficiency and reliability of the 15 16 evaluation process by identifying at an early stage those claimants whose medical impairments 17 are so slight that it is unlikely they would be found to be disabled even if their age, education, and 18 experience were taken into account.” Yuckert, 482 U.S. at 153. In other words, “the step-two 19 inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 20 1290 (citing Yuckert, 482 U.S. at 153–54). “Nonetheless, ‘[t]he plaintiff has the burden of 21 establishing the severity of the impairment.’” Jennings v. Kijakazi, No. 1:20–cv–01180–SKO, 22 2022 WL 209239, at *8 (E.D. Cal. Jan. 24, 2022); see, e.g., Burch, 400 F.3d at 679 (“The 23 claimant carries the initial burden of proving a disability in steps one through four of the 24 analysis.”) (citing Swenson, 876 F.2d at 687). 25 B. 26 The ALJ Did Not Err at Step Two Plaintiff contends the ALJ incorrectly found Plaintiff’s functional deficits from her carpal 27 tunnel syndrome were not significant for at least 12 months (as required under 42 U.S.C. § 28 423(d)(1)(A)) to be considered a severe impairment. Plaintiff states the ALJ should not have 9 1 used Plaintiff’s surgery dates (January and May 2020) as the starting point to calculate the 12- 2 month durational requirement, but rather, the record supported a diagnosis of carpal tunnel 3 syndrome as far back as June 2019. (Doc. 15 at 25). 4 5 6 7 8 9 10 11 12 13 14 In concluding Plaintiff’s carpal tunnel syndrome did not amount to a severe impairment, the ALJ noted: [T]he evidence does not support greater limitations than those noted by the Disability Determination Service (Exhibits C5A, C7A) and Dr. Van Kirk (Exhibit C20F). In addition, the evidence shows the claimant reported significant relief from surgery on the left hand as well as improved function of the right hand. Overall, the evidence relative to carpal tunnel syndrome show much improvement with the left upper extremity function as soon as 7 months after diagnosis and improvement with the right upper extremity as soon as 11 months after diagnosis. She was able to perform activities of daily living and tasks involving gripping and grasping (i.e., dishes and laundry). The functional deficits due to carpal tunnel syndrome were not significant for at least the requisite 12 month duration to be considered a severe impairment. (AR 20-21). The ALJ’s finding is supported by substantial evidence. Plaintiff’s arguments center on 15 when Plaintiff began suffering symptoms of carpal tunnel syndrome, but Plaintiff must establish 16 her condition resulted in the “inability to engage in SGA [substantial gainful activity]” for “the 17 required [twelve]-month period.” SSR 82-52, Titles II and XVI: Duration of Impairment, 1982 18 WL 31376, at *1. An impairment is “severe” if it “significantly” limits a claimant’s ability to do 19 “basic” work activities and “is expected to last for a continuous period of at least 12 months.” 20 20 C.F.R. §§ 404.1520(c), 404.1509. Basic work activities include physical functions like walking, 21 standing, sitting, seeing, lifting, and pushing; social functions like communicating and responding 22 to supervisors and coworkers; and cognitive functions like using judgment, understanding and 23 carrying out instructions, and dealing with changes in a routine work setting. SSR 85-28, 1985 24 WL 56856, at *3. An impairment is not severe if it has “no more than a minimal effect on an 25 individual's ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing SSR 26 85-28, 1985 WL 56856, at *3) (internal quotation marks omitted). 27 Plaintiff contends her carpal tunnel syndrome was supported by EMG testing in June 28 10 1 2019,6 but treatment notes show that while Plaintiff noted hand numbness and pain, there is no 2 evidence it prevented her from engaging in basic work activities, and Plaintiff carries the burden 3 to show her impairments limit her basic abilities. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 4 685, 689 (9th Cir. 2009). This conclusion is furthered by treatment notes from the following 5 month, where Plaintiff reported numbness and tingling in her right wrist and both hands, but 6 displayed a normal range of motion, normal sensation, normal tendon function and normal grip 7 strength. (AR 906-08). Even assuming a decreased range of motion significantly limited 8 Plaintiff’s ability to do basic work activities, Plaintiff reported that she could resume such 9 activities, like doing dishes and laundry, by July 2020. (AR 1118). That same month, doctors 10 noted a progress in her range of motion, grip strength and pinch strength. (AR 1108). 11 Accordingly, the ALJ did not err by finding Plaintiff’s carpal tunnel syndrome had not met the 12 durational requirement to constitute a severe impairment, as “[a] diagnosis alone does not 13 establish the severity of an impairment.” Cindy F. v. Berryhill, 367 F.Supp.3d 1195, 1207 (D. 14 Oregon Feb. 13, 2019) (citing Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). 15 Plaintiff makes no other meaningful argument that the ALJ should have included 16 limitations in Plaintiff’s RFC to accommodate her carpal tunnel except because it satisfied the 12- 17 month durational requirement under Step Two. For instance, Plaintiff does not contend that the 18 ALJ improperly discredited Plaintiff’s subjective testimony. Without additional argument to 19 support why the ALJ should have included limitations to accommodate Plaintiff’s carpal tunnel, 20 any error would be harmless. “Step two is merely a threshold determination meant to screen out 21 weak claims. It is not meant to identify the impairments that should be taken into account when 22 determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1046 (9th Cir. 2017). Because Step 23 Two was resolved in Plaintiff’s favor, she could not have been prejudiced. See id. (holding any 24 error in omitting an impairment from the severe impairments identified at Step Two was harmless 25 when Step Two was resolved in claimant's favor). 26 27 28 6 Plaintiff also contends her carpal tunnel syndrome dated back to March 2017, but treatment records indicate any care she received in the emergency department related to her bike accident, as opposed to the effects of carpal tunnel syndrome. (AR 611). 11 1 V. CONCLUSION 2 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 3 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 4 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 5 Defendant Martin O’Malley, Commissioner of Social Security, and against Plaintiff. 6 7 8 9 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto February 6, 2024 . UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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