Steirer v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Lisa Steirer, No. CV-21-00932-PHX-DLR 10 Plaintiff, ORDER v. Commissioner of Social Security Administration, Defendant.

16 Plaintiff Lisa Steirer applied for Social Security Disability Insurance (“SSDI”) benefits in June 2017. (AR 249-50.) After state agency denials, she appeared before an Administrative Law Judge (“ALJ”), who rejected the application on September 25, 2020.

19 (AR 12-34.) That decision became the final decision of the Commissioner of Social Security Administration (“Commissioner”) when the Appeals Council declined to review it on March 5, 2021. (AR 1-6). Plaintiff filed a complaint with this Court on April 22, 2021, seeking review of the denial of benefits. (Doc. 1.) The Court affirms the decision of the ALJ.

24 I. Standard 25 An ALJ’s factual findings “shall be conclusive if supported by substantial evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside the Commissioner’s disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

1 Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).

10 To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant’s impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the analysis proceeds. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work in the national economy based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. II. Analysis 28 A. Opinions of Drs. Salari and Kahn 1 Plaintiff’s argument goes like this: even though the new regulations changed the way that the ALJ considers medical opinions, the regulations did not abrogate the Ninth Circuit’s treating physician rule. That rule requires an ALJ to “make[] findings setting forth specific, legitimate reasons for [rejecting treating physicians’ opinions] that are based on substantial evidence in the record.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). But the Ninth Circuit has ruled that the new regulations displace the treating physician rule. Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The new regulations require the ALJ to evaluate all medical opinions the same way: under the new regulations.

9 Id. 10 Under the new regulations, before awarding or denying SSDI benefits, the ALJ must “articulate in [his] determination or decision how persuasive [he] finds all of the medical opinions and all of the prior administrative medical findings in [the] case record.” 20 13 C.F.R. § 404.1520c(b)(1). Persuasiveness turns primarily on whether a medical opinion is supported and consistent. 20 C.F.R. § 404.1520c(b)(2). The ALJ need not consider other factors, such as a medical source’s relationship with a claimant, unless the ALJ finds that two or more medical opinions about the same issue are equally well-supported. 20 C.F.R. § 404.1520c(b)(3). These considerations apply equally to findings by the state agency medical and psychological consultants who review claims at the initial and reconsideration levels of the administrative process. 20 C.F.R. § 404.1513a(b)(1); see also 20 C.F.R. § 20 404.1513(a)(5).

21 In her opening brief, Plaintiff’s argument about medical opinion testimony relied on the treating physician rule. The Commissioner’s response concluded correctly that the treating physician rule does not apply and argued that the ALJ’s assessment of medical opinion testimony was supported by substantial evidence. Plaintiff did not address this argument in reply and instead re-pressed the treating physician rule analysis. Plaintiff has thus waived any argument under the new regulations as it relates to medical opinion testimony. See, e.g., Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008).

28 Regardless, the ALJ properly evaluated medical opinion evidence. After reviewing the entire record, the ALJ explained that neither Dr. Salari’s nor Dr. Khan’s opinions were supported by the medical record. For example, Dr. Salari opined that Plaintiff had significant strength and dexterity limitations in her left upper extremity, which the ALJ noted was inconsistent with Dr. Salari’s examination findings—and other medical examinations from other physicians—that Plaintiff had normal sensation in her left deltoid, nearly full strength across multiple ranges of motion. (AR 29-30.) The same problem appeared for Dr. Kahn’s opinion. His opinion essentially restricted Plaintiff to one-arm work with the right hand with minimal assistance from the upper left extremity; yet his medical examination found only slightly restricted left shoulder range of motion and normal left extremity power. (AR 31-32.) Substantial evidence supported the ALJ’s evaluation of medical opinion evidence.

12 B. Plaintiff’s symptom testimony 13 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ evaluates whether the claimant has presented objective medical evidence of an impairment “which could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)).

19 If the claimant presents such evidence, as she did here, then “the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at 1014-15. In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony” but cannot reject a claimant’s testimony solely for “lack of medical evidence.”

25 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

26 The ALJ explained why he did not fully credit Plaintiff’s alleged symptom testimony. First, as noted above, medical examinations included many normal or nearly normal findings of strength and range of motion. (AR 23-25.) Second, medical records || showed that conservative treatment improved the strength and mobility in her upper || extremity as well as decreased pain. (AR 22-27.) Finally, Plaintiff's own daily activities, || which included an active exercise routine and caring for five dog and a family member, 4|| belied her alleged “debilitating upper left extremity pain and hypersensitivity, back pain, || and neuropathic pain.” (AR 18, 26.) The ALJ provided clear and convincing reasons for || finding that the record did not support the extent of the nature and severity of Plaintiff's 7|| alleged symptoms and functional limitations.

8 C. Vocational Expert hypothetical 9 Plaintiff argues that the ALJ presented the Vocational Expert (“VE”) with || hypothetical questions that did not incorporate all of her limitations, an omission which || would be error. Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988). The ALJ asked the || VE a hypothetical question that was an accurate representation of Plaintiff's RFC. (AR 13} Plaintiff argues that the RFC did not encompass all of her restrictions and limitations based on “Plaintiff's credible allegations and limitations assessed by Plaintiff's examining 15} providers[, Drs. Salini and Khan].” (Doc. 12 at 18.) But the Court has already concluded that substantial evidence supported the ALJ’s evaluation of Plaintiff's testimony and the || opinions of her examining providers. Thus, the VE was presented with a hypothetical that || incorporated all of the limitations set out by the RFC, which was supported by substantial || evidence. There was no error.

20 IT IS ORDERED that the decision of the ALJ is AFFIRMED. The Clerk is directed to enter judgment accordingly and terminate this case.

22 Dated this 29th day of September, 2022.

25 {Z, 26 {UO 27 Uaited States Dicwic Judge _5-