Landon-Palmer v. Kijakazi

Filing 21

ORDER Denying 17 Motion to Remand. ORDER Granting 18 Countermotion to Affirm the Agency Decision. Signed by Magistrate Judge Nancy J. Koppe on 11/18/2022. (Copies have been distributed pursuant to the NEF - LOE)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JULIA ANN LANDON-PALMER,

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Case No. 2:22-cv-00744-NJK

Plaintiff,

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v.

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KILOLO KIJAKAZI,

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ORDER

Defendants.
This case involves judicial review of administrative action by the Commissioner of Social

12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits
13 pursuant to Title II of the Social Security Act. Currently before the Court is Plaintiff’s motion to
14 reverse or remand. Docket No. 17. The Commissioner filed a response and cross-motion to affirm.
15 Docket Nos. 18, 19. Plaintiff filed a reply to the Commissioner’s response. Docket No. 20.
16 I.

STANDARDS

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A.

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The standard for determining disability is whether a social security claimant has an

Disability Evaluation Process

19 “inability to engage in any substantial gainful activity by reason of any medically determinable
20 physical or mental impairment which can be expected to last for a continuous period of not less
21 than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That determination
22 is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137,
23 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses whether the claimant
24 is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 1 The
25 second step addresses whether the claimant has a medically determinable impairment that is severe
26 or a combination of impairments that significantly limits basic work activities. 20 C.F.R. §§
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The five-step process is largely the same for both Title II and Title XVI claims. For a Title
28 II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130.

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1 404.1520(c), 416.920(c).

The third step addresses whether the claimant’s impairments or

2 combination of impairments meet or medically equal the criteria of an impairment listed in 20
3 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,
4 416.920(d), 416.925, 416.926. There is then a determination of the claimant’s residual functional
5 capacity (“RFC”), which assesses the claimant’s ability to do physical and mental work-related
6 activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses whether the claimant
7 has the residual functional capacity to perform past relevant work. 20 C.F.R. §§ 404.1520(f),
8 416.920(f). The fifth step addresses whether the claimant is able to do other work considering the
9 residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
10 416.920(g).
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B.

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After exhausting the administrative process, a claimant may seek judicial review of a

Judicial Review

13 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision
14 denying benefits if the proper legal standard was applied and there is substantial evidence in the
15 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).
16 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as
17 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___
18 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not
19 high.” Id.
20 II.

BACKGROUND

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A.

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On August 6, 2019, Plaintiff protectively filed an application for Social Security Disability

Procedural History

23 Insurance benefits pursuant to Title II of the Social Security Act. Administrative Record (“A.R.”)
24 201-07. Plaintiff alleged a disability starting September 27, 2015. A.R. 201. Plaintiff’s initial
25 application was denied on December 17, 2019. A.R. 114-18. She then filed a request for
26 reconsideration, A.R. 119, which was denied, A.R. 120-25. On June 29, 2020, Plaintiff requested
27 a hearing before an Administrative Law Judge (“ALJ”) regarding her benefits determination. A.R.
28 126-27. ALJ John Cusker held a hearing on February 5, 2021. A.R. 52-73. On April 21, 2021,
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1 he issued a decision denying Plaintiff benefits. A.R. 37-46. On June 11, 2021, Plaintiff filed a
2 request for review by the Appeals Council. A.R. 198-200. On April 13, 2022, the Appeals Council
3 declined to change the ALJ’s decision, A.R. 1-6, making it the final decision of the Commissioner.
4 See 42 U.S.C. § 405(g). The instant case was filed on May 10, 2022. Docket No. 1.
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B.

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The ALJ’s decision followed the five-step sequential evaluation process set forth in 20

The Decision Below

7 C.F.R. § 416.920. A.R. 37-46. At step one, the ALJ found that Plaintiff did not engage in
8 substantial gainful activity from September 27, 2015, through December 31, 2020, her date last
9 insured. A.R. 39. At step two, the ALJ found that Plaintiff has the following severe impairments:
10 psoriatic arthritis, psoriasis, and fibromyalgia. A.R. 39-41. At step three, the ALJ found that,
11 through the date last insured, Plaintiff did not have an impairment or combination of impairments
12 that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
13 Subpart P, Appendix 1. A.R. 41-42. The ALJ found that Plaintiff has the residual functional
14 capacity to perform sedentary work as defined by 20 C.F.R. § 404.1567(b) except that she can: (1)
15 lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) sit, stand, or walk for
16 about six hours each in an eight-hour work day, with normal breaks; (3) frequently climb ramps
17 and/or stairs and occasionally climb ladders, ropes, and/or scaffolds; (4) frequently crouch and
18 occasionally kneel and crawl; (5) frequently handle and finger with both upper extremities; and
19 (6) must avoid concentrated exposure to extreme heat, extreme cold, and hazards. A.R. 42-45. At
20 step four, the ALJ found that Plaintiff was able to perform her past relevant work as a medical
21 assistant. A.R. 45. In doing so, he considered the Dictionary of Occupational Titles and the
22 testimony of a vocational expert. Id. Based on these findings, the ALJ found Plaintiff not disabled
23 from September 27, 2015, through December 31, 2020. Id.
24 III.

ANALYSIS

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Plaintiff raises one issue on appeal. She submits that the ALJ erred by failing to state clear

26 and convincing reasons for why he rejected her symptoms and limitations testimony. 2 Docket No.
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Plaintiff also argues for the first time in her reply brief that the ALJ’s residual functional
28 capacity determination is not supported by substantial evidence. Docket No. 20 at 3-5.
“[A]rguments raised for the first time in a reply brief are waived.” Turtle Island Restoration
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1 17 at 5. The Commissioner submits that the ALJ properly evaluated Plaintiff’s testimony because
2 the objective medical findings and Plaintiff’s treatment history did not support the severity of her
3 subjective complaints and alleged limitations.

Docket No. 19 at 7.

Additionally, the

4 Commissioner submits that Plaintiff’s daily activities are inconsistent with the alleged severity of
5 her symptoms. Id. at 11. Plaintiff responds, in short, that the evidence in the record and relied
6 upon by the ALJ does not actually support his findings. Docket No. 20 at 3-7. The Commissioner
7 has the more persuasive argument.
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Credibility and similar determinations are quintessential functions of the judge observing

9 witness testimony, so reviewing courts generally give deference to such assessments. See, e.g.,
10 Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). In the Social Security context,
11 “[t]he ALJ is responsible for determining credibility.” Andrews v. Shalala, 53 F.3d 1035, 103912 40 (9th Cir. 1995). An ALJ’s assessment of a claimant’s testimony is generally afforded “great
13 weight” by a reviewing court. See, e.g., Gontes v. Astrue, 913 F. Supp. 2d 913, 917-18 (C.D. Cal.
14 2012) (citing Weetman v. Sullivan, 877 F.2d 20, 22 (9th Circ. 1989) and Nyman v. Heckler, 779
15 F.2d 528, 531 (9th Cir. 1985)). If an ALJ’s determination to discount a claimant’s testimony is
16 supported by substantial evidence, a court should not second-guess that determination. Chaudhry
17 v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012).3
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The ALJ is required to engage in a two-step analysis to evaluate a claimant’s testimony as

19 to pain and other symptoms: (1) determine whether the individual presented objective medical
20 evidence of an impairment that could reasonably be expected to produce some degree of pain or
21 other symptoms alleged; and (2) if so, whether the intensity and persistence of those symptoms
22 limit an individual’s ability to perform work-related activities. See Social Security Ruling 16-3p.
23 In the absence of evidence of malingering, an ALJ may only reject a claimant’s testimony about
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Network v. U.S. Dep’t of Com., 672 F.3d 1160, 1166 n. 8 (9th Cir. 2012) (quoting Graves v. Arpaio,
25 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam)). Accordingly, the Court need not address that
argument.
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The regulations previously asked the ALJ to assess “credibility.” Social Security Ruling
27 96-7p. The current regulations require the ALJ to instead “evaluate” the claimant’s statements.
Social Security Ruling 16-3p. This change does not alter the deferential nature of the Court’s
28 review.
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1 the severity of symptoms by giving specific, clear, and convincing reasons. See Vasquez v. Astrue,
2 572 F.3d 586, 591 (9th Cir. 2009). Factors that an ALJ may consider include inconsistent daily
3 activities, an inconsistent treatment history, and other factors concerning the claimant’s functional
4 limitations. See Social Security Ruling 16-3p.
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In this case, the ALJ found that Plaintiff provided objective medical evidence of underlying

6 impairments which could reasonably be expected to produce the pain and symptoms alleged. A.R.
7 43. He also found, however, that Plaintiff’s statements regarding the intensity, persistence, and
8 limiting effects of her symptoms were inconsistent with the other evidence in the record. Id. As
9 summarized by the Commissioner, the ALJ made this finding because
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“(1) objective medical findings and Plaintiff’s longitudinal treatment history
did not support the severity of her subjective physical complaints and alleged
limitations; (2) Plaintiff’s activities were inconsistent with the alleged severity
of her symptoms; and (3) State agency medical consultants did not find that
Plaintiff was disabled or totally unable to work.”

14 Docket No. 19 at 7. The Court will address each reason in turn.
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The first reason for the ALJ’s evaluation of Plaintiff’s subjective symptom testimony is

16 that it was inconsistent with the objective medical evidence in the record. A.R. 43-44. Though
17 lack of support in the objective medical evidence cannot be the sole reason to discount a claimant’s
18 testimony, it is a factor which may be properly considered by an ALJ. Thomas v. Barnhart, 278
19 F.3d 947, 959 (9th Cir. 2002). Plaintiff submits that the ALJ improperly relied on records of
20 conservative treatment and managed symptoms in his evaluation of the medical evidence and her
21 testimony. Docket No. 17 at 7-9. “The conservative nature of treatment is a sufficient basis for
22 discounting a claimant’s testimony.” Huntt v. Kijakazi, 2022 WL 393062, *3 (D. Nev. 2022)
23 (citing Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)). Additionally, “[i]mpairments that can
24 be controlled effectively with medication are not disabling for the purpose of determining”
25 disability. Warre v. Comm’r of Soc. Sec. Admin., 493 F.3d 1001, 1006 (9th Cir. 2006) (internal
26 citations omitted).
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Here, the ALJ reviewed Plaintiff’s impairments, history of treatment, and the effects of the

28 treatments on her impairments/symptoms. A.R. 43-44. Plaintiff’s argument that her history of
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1 conservative treatment was improperly considered by the ALJ because none of her doctors
2 suggested more aggressive treatment fails. Docket No. 17 at 7-8. Rather, the fact that none of
3 Plaintiff’s doctors recommended aggressive treatment supports the conclusion that conservative
4 treatments were effective at managing her symptoms. Additionally, even though certain treatment
5 modalities may have failed, A.R. 998, subsequent methods were successful at managing Plaintiff’s
6 symptoms, A.R. 1037. Consequently, the Court finds that substantial evidence supports the ALJ’s
7 findings regarding the inconsistencies between Plaintiff’s testimony and the objective medical
8 record.
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The ALJ found that Plaintiff’s activities were inconsistent with the severity of her

10 complaints and alleged limitations. A.R. 44. An ALJ may consider a claimant’s activities when
11 evaluating the claimant’s symptoms and limitations testimony. See, e.g., Valentine v. Comm’r of
12 Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). Here, the ALJ noted that Plaintiff testified
13 she could perform various activities such as cooking, cleaning, caring for her personal hygiene,
14 driving a car, and going to the dog park. A.R. 44; see also A.R. 63-65, 238-41. Though not
15 exceptionally challenging activities, the ALJ did not err in concluding that these activities
16 undermined Plaintiff’s testimony that her symptoms limited her ability to conduct daily activities.
17 Cf. Gutierrez v. Saul, 2020 WL 972751, *5 (D. Nev. 2020) (finding ALJ did not err in discounting
18 claimant testimony based on reports of doing light household chores, driving, shopping, attending
19 church services, and caring for his personal needs); Rollins v. Massanari, 261 F.3d 853, 857 (9th
20 Cir. 2001) (finding ALJ did not err in discounting claimant testimony based on reports of her
21 attending to the needs of her two young children, cooking, housekeeping, laundry, shopping, and
22 attending therapy and various other meetings every week).
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Finally, the ALJ found that the state agency medical consultants did not find Plaintiff

24 disabled. A.R. 44-45. An ALJ may consider the lack of a medical opinion in the record that a
25 claimant is disabled when evaluating a claimant’s testimony. Matthews v. Shalala, 10 F.3d 678,
26 679-80 (9th Cir. 1993); Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001). Here, the
27 ALJ considered the opinions of two state agency medical consultants who reviewed Plaintiff’s
28 records at the initial and reconsideration levels. A.R. 44. Dr. Samuel Pak, M.D., conducted the
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