Harvey-Mitchell v. Colvin

Filing 15

ORDER re 3 Complaint - by Judge J Richard Creatura. The Court ORDERS that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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ERICA HARVEY-MITCHELL,

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Plaintiff,

CASE NO. 2:16-cv-01939 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed. See Dkt. 13, 14.
Plaintiff had a baby in January 2013 and later developed postpartum
cardiomyopathy (“PPCM”). See, e.g., AR. 283. PPCM presents with symptoms of heart

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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failure secondary to left ventricular systolic dysfunction, such as shortness of breath and

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cardiomegaly (enlarged heart) and symptoms of acute renal failure. See Dkt. 14, pp. 3-5

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(citing, e.g., Peripartum Cardiomyopathy, Michael P. Carson, M.D.,

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Http://emedicine.medscape.com/article/153153-overview (last visited August 21, 2017)).
Plaintiff contends that the ALJ erred by failing to conclude that some of these symptoms

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were severe impairments and by failing to conclude that plaintiff’s impairments met or
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medically equaled a Listed Impairment.
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After considering and reviewing the record, the Court concludes that the ALJ did
not commit any harmful error during the evaluation of plaintiff’s Social Security

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application. Although plaintiff argues that the ALJ failed to conclude that some of her

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impairments were severe, plaintiff failed to carry her burden to demonstrate that any of

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these impairments were independent medically determinable impairments lasting for at

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least a year. For example, although plaintiff contends that the ALJ improperly failed to

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conclude that her shortness of breath was a severe impairment, the record shows that

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plaintiff’s shortness of breath resolved within six months of her alleged onset date of

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disability. Similarly, regarding plaintiff’s allegation regarding Listing 4.02, heart failure,
plaintiff did not provide evidence demonstrating, as alleged, that her ejection fraction was

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30 percent or less for more than six months from the date of alleged disability onset.
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Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
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BACKGROUND

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Plaintiff, ERICA LA TRESHIA HARVEY-MITCHELL, was born in 1977 and
was 36 years old on the alleged date of disability onset of July 20, 2013. See AR. 22, 183-

ORDER ON PLAINTIFF’S COMPLAINT - 2

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86, 187-92. Plaintiff has at least a high school education and is able to communicate in

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English. See AR. 29. Plaintiff has experience working in child care centers. AR. 43-45.

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According to the ALJ, plaintiff has at least the severe impairments of “history of

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postpartum cardiomyopathy and morbid obesity (20 CFR 404.1520(c) and 416.920(c)).”
AR. 24.

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At the time of the hearing, plaintiff was living with her three children. AR. 48.
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PROCEDURAL HISTORY
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Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42

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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and

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following reconsideration. See AR. 65, 66, 83, 84. Plaintiff’s requested hearing was held

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before Administrative Law Judge Timothy Mangrum (“the ALJ”) on December 23, 2014.

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See AR. 35-64. On June 5, 2015, the ALJ issued a written decision in which he concluded

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that plaintiff was not disabled pursuant to the Social Security Act. See AR. 19-34.

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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the
Commissioner err in determining plaintiff’s severe impairments; (2) Did the
Commissioner err in determining that plaintiff did not meet or equal a medical listing; (3)

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Did the Commissioner err in evaluating plaintiff’s residual functional capacity; and (4)
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Did the Commissioner err because the decision is not supported by substantial evidence.
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See Dkt. 13, p. 2.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

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denial of social security benefits if the ALJ's findings are based on legal error or not

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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

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1999)).
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DISCUSSION
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(1)

Did the Commissioner err in determining plaintiff’s severe
impairments?

Plaintiff contends that the ALJ erred at step two when considering plaintiff’s
severe impairments, arguing that the ALJ failed to consider whether plaintiff’s other
numerous impairments were severe, and therefore failed to account for any limitations

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based on those impairments. See Dkt. 13, pp. 5-7. Defendant contends that there is no
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error, and even if there is any error, it is harmless error. See Dkt. 14, pp. 2-8.
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Step-two of the administration’s evaluation process requires the ALJ to determine
if the claimant “has a medically severe impairment or combination of impairments.”

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Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). The step-two determination of whether a

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disability is severe is merely a threshold determination, raising potentially only a “prima

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facie case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (citing

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Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999)).

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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The ALJ found that plaintiff had severe impairments, including history of

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postpartum cardiomyopathy and morbid obesity. AR. 24. Therefore, the ALJ resolved

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step two of the sequential disability evaluation process in plaintiff’s favor and continued

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on to the next step in the process. See id.
An impairment is "not severe" if it does not "significantly limit" the ability to

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conduct basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). If a claimant’s
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impairments are “not severe enough to limit significantly the claimant’s ability to
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perform most jobs, by definition the impairment does not prevent the claimant from
engaging in any substantial gainful activity.” Yuckert, supra, 482 U.S. at 146. Regarding

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the establishment of a disability, it is the claimant’s burden to “‘furnish[] such medical

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and other evidence of the existence thereof as the Secretary may require.’” Yuckert,

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supra, 482 U.S. at 146 (quoting 42 U.S.C. § 423(d)(5)(A)) (citing Mathews v. Eldridge,

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424 U.S. 319, 336 (1976)) (footnote omitted).

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The Court also notes that plaintiff bears the burden to establish by a

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preponderance of the evidence the existence of a severe impairment that prevented

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performance of substantial gainful activity and that this impairment lasted for at least
twelve continuous months. 20 C.F.R. §§ 404.1505(a), 404.1512(a) and (c), 416.905(a),

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416.912(a) and (c); Yuckert, supra, 482 U.S. at 146; see also Tidwell v. Apfel, 161 F.3d
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599, 601 (9th Cir. 1998) (citing Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995)).
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Any impairment that does not last continuously for twelve months does not satisfy the
requirement. 20 C.F.R. §§ 404.1505(a), 404.1512(a) and (c), 416.905(a), 416.912(a) and
(c); Roberts, supra, 66 F.3d at 182.

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In Roberts, the Ninth Circuit found that the decision by the Social Security

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Administration that plaintiff Roberts “was not disabled due to obesity was supported by

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substantial evidence because Roberts failed to carry the burden of showing that she met

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the duration requirement.” Roberts, supra, 66 F.3d at 182. As noted by the court, the
“burden requires the claimant to make out a case both that she has an impairment listed in

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the regulations, and that she has met the duration requirement.” Id. (citing 20 C.F.R. §
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416.920(d)).
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Here, plaintiff contends that the ALJ failed to analyze the severity of plaintiff’s
alleged “congestive heart failure, shortness of breath, acute renal failure, chest pain at

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rest, chronic systolic heart failure, left ventricular mural thrombus and hypertension.”

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Dkt. 13, p. 6 (citing AR. 254, 255, 282, 349, 401). Defendant argues that when the ALJ

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discussed plaintiff’s severe impairments, the ALJ noted as follows:

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A diagnosis of postpartum cardiomyopathy exists in the record, with
symptoms of ongoing shortness of breath, dyspnea on exertion,
nocturnal dyspnea, and orthopnea post-partisan, as of July 2013. She
experienced mildly intermittent chest pain. Chest x-ray showed
cardiomegaly without overt edema. An echocardiogram revealed mildly
dilated left ventricular function and severely reduced systolic function
with an ejection fraction estimated at 10 percent to 15 percent with two
left ventricular thrombi.

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Dkt. 14, p. 3 (citing AR. 24-25 (citing AR. 252-336, 351-96, 420)). Regarding plaintiff’s

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alleged severe impairments not noted by the ALJ explicitly as symptoms of plaintiff’s

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postpartum cardiomyopathy (“PPCM”), defendant notes that in July 2013, plaintiff’s

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“repeat chest x-ray showed stable cardiomegaly again without congestive heart failure

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[and] . . . . [her] constellation of symptoms was thought to be consistent with acute

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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uncompensated systolic heart failure, most concerning for possible postpartum

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cardiomyopathy.” Id. at 4 (citing AR. 256, 276, 282); see also AR. 25 (the ALJ also

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noted this x-ray showing “stable cardiomegaly without congestive heart failure,” further

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noting that plaintiff’s “cardiomegaly without congestive heart failure was considered
stable”) (citing AR. 262). Similarly, defendant notes that plaintiff’s symptom of acute

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renal failure was expected to normalize with treatment, and “does not appear in the
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record subsequent to [plaintiff] July 2013 hospitalization.” Id. at 5 (citing AR. 1-522, 263
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(“continue diuresis, anticipate Cr [serum creatinine] will normalize with improved LVSF
[left ventricular systolic] function”), 271, 282). Finally, regarding plaintiff’s alleged

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severe impairment of hypertension, defendant notes that in December 10, 2013,

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approximately 5 months after plaintiff’s alleged onset date of disability, plaintiff’s

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physician indicated that her hypertension was “well-controlled.” Id. at 6 (citing AR. 349,

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401 (also assessed as well-controlled in December 2014)). Based on the above references

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to the record, defendant argues that “review of the record does not support [plaintiff’s]

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assertion [regarding severe impairments overlooked by the ALJ], as the alleged additional

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impairments were either symptoms of July 2013 PPCM, short-term issues/conditions
arising from it, or conditions that were well-controlled with treatment.” Id. at 4 (citing
Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

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(“impairments that can be controlled effectively with medication are not disabling”)).
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Plaintiff did not reply to any of defendant’s citations to the record or arguments, as she
declined to file a reply. For the reasons discussed both here and in the subsequent section,
see infra, section 2, the Court concludes that defendant’s arguments are persuasive.

ORDER ON PLAINTIFF’S COMPLAINT - 7

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Plaintiff’s argument regarding the impairments that she alleges that the ALJ

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overlooked as severe impairments entails a list of the alleged severe impairments, along

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with citations to the record documenting that they are noted, and a sentence regarding

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plaintiff’s testimony “about the symptoms she experienced because of her impairments,
including being so short of breath that she did not feel like she was getting enough air."

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Dkt. 13, pp. 6-7 (citing AR. 45). In addition to a relatively detailed review of the medical
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record, some of which the Court has noted above, defendant responds to plaintiff’s
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argument by noting that although plaintiff “states that her own testimony supported her
claims, [she] does not dispute the ALJ’s finding that her subjective allegations were not

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reasonably consistent with the medical evidence; thus she has waived the issue." Dkt. 14,

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p. 6 (internal citation to Dkt. 13, p. 7 (citing AR. 45)) (other citation omitted); see also

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defendant’s general discussion, id. at pp. 3-8.

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For the reasons stated, including defendant’s citations to the record noted above,

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and the record as a whole, including the Court’s discussion below, see infra, section 2,

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the Court concludes that defendant’s argument that plaintiff’s alleged overlooked severe

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impairments “were either symptoms of July 2013 PPCM, short-term issues/conditions
arising from it, or conditions that were well-controlled with treatment” is persuasive and

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substantiated by the record. For example, although plaintiff’s alleged date of disability
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onset is July 20, 2013, within six months of this date, on December 10, 2013 she reported
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no shortness of breath (dyspnea). See AR. 347. Similarly, as noted previously, her
hypertension was well controlled by December 2013, and her symptom of acute renal
failure was expected to normalize with treatment, and “does not appear in the record

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subsequent to [plaintiff] July 2013 hospitalization.” Dkt. 14, p. 5, 6 (citing AR. 263, 401).

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At her December 10, 2013 appointment, plaintiff described “NYHA Class 1 symptoms,"

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(AR. 347), which involve “no limitation of physical activity. Ordinary physical activity

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does not cause undue fatigue, palpitation, dyspnea (shortness of breath).” Classes of
Heart Failure, American Heart Association website,

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http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes7

of-Heart-Failure_UCM_306328_Article.jsp#.WZSur02FNLN (citing the New York
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Heart Association (NYHA) Functional Classification) (last visited August 21, 2017).
Finally, as noted by defendant, heart failure does not mean that the heart has stopped

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working, but refers to a situation in which “the heart’s pumping power is weaker than

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normal,” and plaintiff’s ejection fraction is discussed further below, see infra, section 2.

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See Dkt. 14, p. 3 (citing http://www.webmd.com/heart-disease/guide-heart-failure#1-2).

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Plaintiff did not meet her burden to demonstrate that the alleged severe

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impairments are independent severe impairments as defined by the Social Security Act.

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See Roberts, supra, 66 F.3d at 182 (citing 20 C.F.R. § 416.920(d)) (the “burden requires

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the claimant to make out a case both that she has an impairment listed in the regulations,
and that she has met the duration requirement”). Therefore, the Court concludes that there

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is no harmful legal error at step two, and the ALJ’s findings are based on substantial
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evidence in the record as a whole.
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//
//

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ORDER ON PLAINTIFF’S COMPLAINT - 9

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(2)

Did the Commissioner err in determining that plaintiff did not meet or
equal a medical listing?

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Plaintiff contends that the ALJ erred in determining that plaintiff did not meet or
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equal a medical listing, specifically Listing 4.02. Dkt. 13, pp. 7-8. Defendant contends
that there is no error. Dkt. 14, pp. 8-12.
At step-three of the administrative process, if the administration finds that the

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claimant has an impairment(s) that has lasted or can be expected to last for not less than

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twelve months and is included in Appendix 1 of the Listings of Impairments, or is equal

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to a listed impairment, the claimant will be considered disabled without considering age,

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education and work experience. 20 C.F.R. § 404.1520(d). The claimant bears the

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burden of proof regarding whether or not she “has an impairment that meets or equals the

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criteria of an impairment listed” in 20 C.F.R. pt. 404, subpt. P, app. 1 (“the Listings”).
Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005), as modified to render a published

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opinion by 2005 U.S. App. LEXIS 3756 (9th Cir. 2005).
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A claimant must demonstrate that she medically equals each of the individual
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criteria for the particular Listing by presenting “medical findings equal in severity to all
the criteria for the one most similar listed impairment.” Kennedy v. Colvin, 738 F.3d

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1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990); 20

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C.F.R. § 416.926(a)). A claimant cannot rely on overall functional impact, but must

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demonstrate that the impairment equals each criterion in the Listing. Id.

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Plaintiff alleges error regarding Listing 4.02, which includes the following
requirements:

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ORDER ON PLAINTIFF’S COMPLAINT - 10

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4.02 Chronic heart failure while on a regimen of prescribed treatment,
with symptoms and signs described in 4.00D2. The required level of
severity for this impairment is met when the requirements in both A and
B are satisfied.
A. Medically documented presence of one of the following:
1. Systolic failure (see 4.00D1a(i)), with left ventricular end
diastolic dimensions greater than 6.0 cm or ejection fraction
of 30 percent or less during a period of stability (not during
an episode of acute heart failure); or
2. Diastolic failure . . . .

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AND

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B. Resulting in one of the following:
1. Persistent symptoms of heart failure which very seriously
limit the ability to independently initiate, sustain, or complete
activities of daily living in an individual for whom an MC,
preferably one experienced in the care of patients with
cardiovascular disease, has concluded that the performance of an
exercise test would present a significant risk to the individual; or
2. Three or more separate episodes of acute congestive heart
failure within a consecutive 12-month period (see 4.00A3e),
with evidence of fluid retention (see 4.00D2b(ii)) from clinical
and imaging assessments at the time of the episodes, requiring
acute extended physician intervention such as hospitalization or
emergency room treatment for 12 hours or more, separated by
periods of stabilization (see 4.00D4c); or
3. Inability to perform on an exercise tolerance test at a
workload equivalent to 5 METs or less due to:
a. Dyspnea, fatigue, palpitations, or chest discomfort; or
b. Three or more consecutive premature ventricular
contractions (ventricular tachycardia), or increasing
frequency of ventricular ectopy with at least 6 premature
ventricular contractions per minute; or
c. Decrease of 10 mm Hg or more in systolic pressure below
the baseline systolic blood pressure or the preceding systolic
pressure measured during exercise (see 4.00D4d) due to left
ventricular dysfunction, despite an increase in workload; or
d. Signs attributable to inadequate cerebral perfusion, such
as ataxic gait or mental confusion.

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20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 4.02 (emphases added).

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Plaintiff contends that she meets this Listing because she meets the requirements

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of paragraph A regarding systolic failure and paragraph B, section 3(a), regarding

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inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or

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less due to dyspnea, fatigue, and chest discomfort. This Listing requires meeting both
paragraph A and paragraph B requirements. See id.

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Regarding the paragraph A requirements, plaintiff contends that she demonstrated
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that she suffers from systolic failure, with “ejection fracture of 30 percent or less during a
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period of stability.” Dkt. 13, pp. 7-8. As noted by plaintiff, the ALJ determined that
plaintiff did not meet Listing 4.02 in part because plaintiff’s “ejection fraction improved

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to a range of 35 to 40 percent within six months, above the requirement for the listing."

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Dkt. 13, p. 7 (citing AR. 25). Although plaintiff contends that this finding by the ALJ is

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incorrect because in July 2014 plaintiff demonstrated ejection fraction of 10 to 15

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percent, this finding of ejection fraction of 10 to 15 percent on the page cited by plaintiff

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actually is from August 2, 2013. See id. (citing AR. 286); see also AR. 286. Plaintiff’s

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date of alleged disability onset of July 20, 2013. See AR. 22. Therefore, this finding in

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the record noted by plaintiff does not demonstrate that she met Listing 4.02 and was
therefore disabled, as a finding of disability requires impairment for at least 12 months in

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duration. See 20 C.F.R. §§ 404.1505(a), 404.1512(a) and (c), 416.905(a), 416.912(a) and
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(c); Roberts, supra, 66 F.3d at 182.
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Next, plaintiff notes that her ejection fraction was estimated at 35 to 40 percent in
December 2013, but plaintiff argues that this ejection fraction should not preclude her
from meeting the Listing because “this is only an estimate as noted by her doctor [and]

ORDER ON PLAINTIFF’S COMPLAINT - 12

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given the closeness of the numbers to the requirement of the listing, it is likely that

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[plaintiff] meets the paragraph A listing requirements." Dkt. 13, pp. 7-8 (citing AR. 338).

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Defendants notes that at her administrative hearing, plaintiff’s attorney noted that
plaintiff “probably doesn’t meet that listing but she comes close.” See AR. 42. Defendant
also notes that by December 2013, as noted by the ALJ, an updated echocardiogram

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indicated that the left ventricle was mildly to moderately dilated; and that the left
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ventricular ejection fraction was improved, estimated at 35 to 40 percent. Dkt. 14, p. 10
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(citing AR. 25, 338, 400). Defendant argues that plaintiff therefore did not demonstrate
the required readings continuing during the period of stability for the required 12

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continuous months. See id. at 11. Regarding plaintiff’s argument that the ejection fraction

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results are only an estimate, defendant contends that “the ejection fraction results noted

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throughout the record were for the most part presented as estimates that her treating

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cardiologists accepted as valid. Id. (citing AR. 269, 272, 283, 286, 292, 296, 348).

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Defendant also contends that plaintiff “provides no authority in support of her implication

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that the estimates were not reliable indicators of her condition.” Id. (citing plaintiff’s

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brief, Dkt. 13, pp. 7-8).
Regarding plaintiff’s contention that given the closeness of the estimated numbers

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to the requirement of the Listing that it is likely that she meets the paragraph A Listing
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requirements, defendant argues that plaintiff’s “condition simply did not meet the listing
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level requirements.” Id. In support, defendant cites Ninth Circuit case law:
Listed impairments are purposefully set at a high level of severity
because “the listings were designed to operate as a presumption of
disability that makes further inquiry unnecessary . . . . Listed

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impairments set such strict standards because they automatically end the
five-step inquiry, before residual functional capacity is even considered.

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Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebly, 493 U.S.
521, 532 (1990)). Therefore, “coming close” is not sufficient.
Defendant also argues that plaintiff’s contention that she meets the requirements

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for paragraph B, specifically section 3 (a), which requires an inability to perform an

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exercise tolerance test, is unpersuasive because “there is no indication, other than her

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discredited testimony, indicating that she could not perform an exercise tolerance test.”

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Dkt. 14, p. 12 (citing AR. 1-522). Defendant also argues that the pages cited by plaintiff

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“do not support her assertion, and are not frequent," noting that plaintiff cites records
from prior to the alleged onset of disability, and sites other pages that refer only to the
month of July 2013. Id. (citing AR. 252, 264, 422, 428). Defendant also notes that

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plaintiff reported no shortness of breath in August 2013. Id. (citing AR. 290). Plaintiff
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has provided no rebuttal to these citations.
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Defendant’s arguments are persuasive and her citations and characterizations of
the record are accurate. The ALJ’s finding that plaintiff’s ejection fraction was above 30

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percent by December 2013 is supported by substantial evidence in the record as a whole.

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See AR. 25, 338. This finding alone is sufficient to support the ALJ’s finding that

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plaintiff failed to meet Listing 4.02, chronic heart failure, as she therefore did not meet

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requirements of paragraph A. See AR. 25; see also 20 C.F.R. Part 404, Subpart P,

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Appendix 1, Listing 4.02. As noted by defendant, by December 2014, plaintiff’s ejection

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fraction had returned to normal. See Dkt. 14, p. 6 (citing AR. 27, 516-19); see also AR.

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ORDER ON PLAINTIFF’S COMPLAINT - 14

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518 (last echo was 12/2014 which showed her EF had returned to normal”). In addition,

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defendant’s arguments that plaintiff also did not establish that she met the requirements

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of paragraph B, which requires an inability to perform an exercise tolerance test at a

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workload equivalent to five METs or less due to shortness of breath, fatigue, palpitations,
or chest discomfort, also are persuasive. As noted by the ALJ plaintiff denied complaints

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of chest pain, palpitations, or shortness of breath during follow-up visits between
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September and December 2013. See AR. 27; see also AR. 347 (“she is not having issues
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with edema or shortness of breath”), 348 ("negative for chest pain and exertional chest
pressure/discomfort").
Furthermore, by December 2013, cardiologist Dr. Joshua L. Busch M. D. assessed

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that plaintiff’s condition was stable with NYHA class I symptoms. See AR. 349. NYHA

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class I symptoms means that there is “No limitation of physical activity. Ordinary

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physical activity does not cause undue fatigue, palpitation, dyspnea (shortness of

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breath)." See Classes of Heart Failure, American Heart Association website,

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http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-

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of-Heart-Failure_UCM_306328_Article.jsp#.WZSur02FNLN (citing the New York
Heart Association (NYHA) Functional Classification) (last visited August 21, 2017).

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For the reasons stated and based on the record as a whole, the Court concludes that
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plaintiff did not establish that her impairments met or medically equaled Listing 4.02.
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The Court also concludes that plaintiff has not demonstrated that the ALJ committed any
harmful legal error when evaluating whether plaintiff’s impairments met or medically
equaled a Listing at step three of the sequential disability evaluation procedure.

ORDER ON PLAINTIFF’S COMPLAINT - 15

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(3)

Did the Commissioner err in evaluating plaintiff’s residual functional
capacity (“RFC”)?

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Although plaintiff contends that the ALJ erred when determining her RFC,
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plaintiff's argument regarding her RFC depends on her previous argument that the ALJ
did not take into consideration all of plaintiff’s severe impairments, again noting

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plaintiff’s allegations. See Dkt. 13, p. 9. The Court already has addressed this argument

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and found it unpersuasive. See supra, section 1. As argued by defendant, “a claimant does

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not establish that an ALJ’s RFC determination is incorrect by simply restating her

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arguments that the ALJ improperly discounted certain evidence, when the record instead

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demonstrates the ALJ did not improperly reject that evidence.” Dkt. 14, p. 13 (citing

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Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008)).

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(4)

Did the Commissioner err because the decision is not supported by
substantial evidence?

Similarly, although plaintiff contends that the ALJ’s decision is not supported by

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substantial evidence, this argument by plaintiff explicitly is “based on the above

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arguments and review of the record . . . ." Dkt. 13, p. 10. The Court already has

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addressed the “above arguments” and has concluded that they are not persuasive.

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CONCLUSION
Although plaintiff contends that the ALJ failed to consider severe some of her
alleged impairments, she failed to demonstrate that the alleged severe impairments were
distinct medically determinable impairments lasting at least a year in duration. Similarly,

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plaintiff failed to demonstrate that her ejection fraction was below 30% continuously for
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a year in duration.
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ORDER ON PLAINTIFF’S COMPLAINT - 16

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Based on the stated reasons and the relevant record, the Court ORDERS that this
matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
JUDGMENT should be for defendant and the case should be closed.
Dated this 24th day of August, 2017.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 17