Opinion
CV-22-00070-PHX-DGC
10-17-2022
Kenya Robinson, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff Kenya Robinson seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security, which denied her claim for disability insurance benefits and supplemental security income. For reasons stated below, the Court will affirm the decision.
I. Background.
Plaintiff is a 50-year-old woman with a high school education who has worked as a cashier, store laborer, and survey worker. Administrative Transcript (“Tr.”) 180, 408, 2377. She filed her social security claim in June 2015, alleging a disability date of June 4, 2014 due to arm pain, degenerative disc disease, bipolar disorder, and depression. Tr. 102, 180, 375-86.
The claim was denied by state agency physicians at the initial and reconsideration levels. Tr. 178-265. An Administrative Law Judge (“ALJ”) denied the claim in August 2018, and the Appeals Council denied review in May 2019. Tr. 1-6, 99-119. In July 2020, the case was remanded for further proceedings because the ALJ had erred in rejecting Dr. Donald Fruchtman's opinion about Plaintiff's ability to do work-related activities. Tr. 2445-58; Robinson v. Comm'r of Soc. Sec. Admin., No. CV-19-04464-PHX-DWL, 2020 WL 4035170 (D. Ariz. July 17, 2020); see Tr. 108, 551-57.
Plaintiff and a vocational expert testified at a hearing before a different ALJ on November 17, 2021. Tr. 2390-2415. The ALJ issued a written decision denying the claim on January 11, 2022. Tr. 2360-89. This decision became Defendant's final decision when the Appeals Council did not assume jurisdiction of the case. See Doc. 11 at 2; 20 C.F.R. §§ 404.984(a), 416.1484(a).
Plaintiff then commenced this action for judicial review. Doc. 1. The parties briefed the issues after receipt of the certified administrative transcript. Docs. 12-15. Because the ALJ's decision is not based on harmful legal error and is supported by substantial evidence, the Court will affirm it.
II. Standard of Review.
The Court reviews only those issues raised by the party challenging the ALJ's decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may vacate the decision where it is based on legal error or not supported by substantial evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion. Id. In determining whether substantial evidence supports the ALJ's decision, the Court “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Orn, 495 F.3d at 630 (citation omitted). The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence, and the decision must be upheld where the evidence is susceptible to more than one rational interpretation. Magallanes, 881 F.2d at 750; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
III. Disability and the Five-Step Evaluation Process.
Under the Social Security Act, a claimant is disabled if she cannot engage substantial gainful activity because of a medically determinable physical or mental impairment that has lasted, or can be expected to last, for a continuous period of twelve months or more. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Whether the claimant is disabled is determined by a five-step process. The claimant must show that (1) she has not engaged in substantial gainful activity since the alleged disability date, (2) she has a severe impairment, and (3) the impairment meets or equals a listed impairment or (4) her residual functional capacity (“RFC”) - he most she can do with her impairments - precludes her from performing past work. If the claimant meets her burden at step three, she is presumed disabled and the process ends. If the inquiry proceeds and the claimant meets her burden at step four, then (5) the Commissioner must show that the claimant is able to perform other available work given her RFC, age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4) (disability insurance), 416.920(a)(4) (supplemental security income); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (July 2, 1996) (RFC assessment).
An impairment or combination of impairments is “severe” if it significantly limits the ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities - the abilities and aptitudes necessary to do most jobs - include physical functions such as sitting, standing, walking, lifting, carrying, reaching, and handling; capacities for seeing, hearing, and speaking; understanding, remembering, and carrying out instructions; use of judgment; responding appropriately to co-workers and supervision; and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1522(c), 416.922(c).
Plaintiff has met her burden at steps one and two - she has not engaged in substantial gainful activity since the alleged disability date and has multiple severe impairments: carpal tunnel syndrome, degenerative disc disease, shoulder osteoarthritis, fibromyalgia, depressive disorder, and anxiety. Tr. 2366. The ALJ found at step three that Plaintiff's impairments do not constitute a listed impairment. Tr. 2368-70. Plaintiff does not challenge this finding.
Plaintiff also has some non-severe impairments. Tr. 2366-67. Plaintiff's diabetes, hypertension, hyperlipidemia, and headaches have been managed with medications, and her fatty liver, renal mass, and obesity have not required treatment other than monitoring. Id. While these impairments would have no more than a minimal effect on Plaintiff's ability to work, the ALJ still considered them in determining Plaintiff's RFC at step four. Tr. 2367, 2370; see 20 C.F.R. §§ 404.1522, 416.922 (non-severe impairments); SSR 96-8p, at *5 (the ALJ must consider all impairments, “even those that are not ‘severe'”).
The ALJ determined at step four that Plaintiff's RFC precludes her from performing past work (Tr. 2377-78), but that she is able to perform a range of light work with certain restrictions (Tr. 2370-77). Specifically, the ALJ found that Plaintiff has the following RFC:
To determine the physical exertion requirements of work in the national economy, the Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very heavy. “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 CFR §§ 404.1567(b), 416.967(b) .
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except with the following limitations: She can never climb ladders, ropes, and scaffolds. She can occasionally climb ramps and stairs. She can occasionally crawl, stoop, crouch, kneel, and balance (as defined in the Dictionary of Occupational Titles (DOT)). She can occasionally reach overhead bilaterally. She can frequently handle, finger, and feel bilaterally. She can have occasional exposure to dangerous moving machinery and unprotected heights. She can understand, remember, and carry out simple instructions consistent with [a Specific Vocational Preparation skill level] ¶ 2 or below. She can have occasional routine changes in the work setting. She can work with occasional in-person interaction with the public and occasional interaction with coworkers.Tr. 2370. After discussing the medical records in evidence, opinions of various doctors, and Plaintiff's symptom testimony, the ALJ explained that this RFC assessment “is supported by the physical and mental status examinations, the diagnostic testing/imaging, the course of treatment, and [Plaintiff's] activities of daily living.” Tr. 2377.
While Plaintiff's fibromyalgia is severe (Tr. 2366), the ALJ explained that the alleged fatigue from the condition was supported by only “a few reports of fatigue or exhaustion in the record[.]” Tr. 2373 (citing Exs. 17F/1, 18F, 44F). The ALJ found that “the light exertional level, coupled with the postural, environmental, and mental limitations adequately accommodates [Plaintiff's] symptoms stemming from [her fibromyalgia].” Id. Plaintiff does not challenge this finding.
Based on Plaintiff's RFC, relevant vocational factors, and testimony from the vocational expert, the ALJ determined at step five that there are a significant number of jobs Plaintiff can perform, including office helper, mail clerk, and storage facility rental clerk. Tr. 2378-79. The ALJ therefore found Plaintiff not disabled within the meaning of the Social Security Act. Tr. 2379.
IV. Discussion.
Plaintiff contends that the ALJ failed to meet her burden at step five and erred in rejecting Dr. Fruchtman's opinion. Docs. 13 at 16-22, 15 at 1-6. Defendant argues that the ALJ committed no harmful legal error and her decision is supported by substantial evidence. Doc. 14 at 4-11.
Plaintiff does not challenge the ALJ's finding that her statements about the intensity, persistence, and limiting effects of her symptoms “are not entirely consistent with the medical evidence and other evidence in the record.” Tr. 2371.
A. Dr. Fruchtman.
Dr. Fruchtman examined Plaintiff and completed a functional assessment in October 2015. Tr. 551-57 (Ex. 4F). Dr. Fruchtman observed generally that Plaintiff walked into the exam room without difficulty, sat comfortably, and was able to get on and off the exam table, remove and put on her shoes, turn a doorknob, manipulate a button, and pick up a coin from the desk. Tr. 552.
Most of the physical exam was unremarkable. Plaintiff had normal joints in the hip, knees, ankles, elbows, wrists, and hands, and had normal coordination, station, gait, straight leg raises, and tendon reflexes. Tr. 553-54. Her motor strength and muscle tone was 5/5 in the lower body and 4.5/5 in the upper extremities. Tr. 554. Her bilateral grip strength was 4/5 due to some muscle weakness in the wrist from carpal tunnel syndrome, which caused tingling in the hands and showed positive Tinel and Phalen signs. Tr. 553-54. Plaintiff had some tenderness, tightness, spasm, and limited range of motion in the cervical spine. Tr. 553. She also had some mild discomfort with limited range of motion in the shoulders. Id.
Tinel and Phalen tests are used to diagnose carpal tunnel syndrome, which compresses the median nerve at the wrist. The Tinel test involves tapping a finger along the problem nerve for tingling or pain. For the Phalen “wrist flexion” test, the patient presses the back of the hands together for 60 seconds to increase pressure on the carpal tunnel. See WebMD, What Is a Tinel Sign?, https://www.webmd.com/pain-management/ carpal-tunnel/what-is-tinel-sign; Physiopedia, Phalen's Test, https://www.physio-pedia. com/Phalen%E2%80 %99s (last visited Oct. 3, 3022).
Dr. Fruchtman diagnosed Plaintiff with chronic pain, cervical somatic dysfunction, shoulder pain with no sign of internal derangement, and carpel tunnel syndrome. Tr. 554. He opined in the functional assessment that Plaintiff was limited to lifting and carrying only 10 pounds and occasionally reaching and handling. Tr. 555-56.
Under the applicable regulations, the ALJ generally should give greatest weight to a treating physician's opinion and more weight to the opinion of an examining physician than a nonexamining physician. 20 C.F.R. §§ 404.1527(c), 416.927(c); see Andrews, 53 F.3d at 1040-41. Where there are conflicting medical opinions, as in this case, the ALJ may reject an examining physician's opinion only by providing “‘specific and legitimate reasons' supported by substantial evidence in the record[.]” Lester, 81 F.3d at 830; see Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751.
In 2017, the Commissioner revised the regulations to eliminate the hierarchy of medical opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, which apply to claims filed after March 26, 2017, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical opinion[.]” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These new regulations do not apply here because Plaintiff filed her claim in 2015. Tr. 375-86.
The ALJ gave no weight to Dr. Fruchtman's opinion because it “is not consistent with the totality of the medical evidence.” Tr. 2375. The ALJ explained that objective evidence does not reflect significant treatment for carpal tunnel syndrome; physical exams revealed no atrophy in the hands and no significant issues with sensation, manipulation, or grip; multiple exams showed normal strength and gait with no distress; and Plaintiff's shoulder surgery appears to have helped her symptoms. Id. (citations omitted). The ALJ ultimately found that Plaintiff has greater exertional and manipulative capabilities than those assessed by Dr. Fruchtman. Id.; see also Tr. 2373 (discussing Plaintiff's carpal tunnel syndrome and Dr. Fruchtman's exam).
Plaintiff contends that the ALJ provided no legitimate reason for rejecting Dr. Fruchtman's opinion. Docs. 13 at 18-22, 15 at 4-6. The Court does not agree.
1. Carpal Tunnel Syndrome Treatment.
Plaintiff notes that she received steroid injections, pain medication (fentanyl), and a muscle relaxer (cyclobenzaprine) for her carpal tunnel syndrome. Doc. 13 at 19 (citing Tr. 809). She claims that “[i]njections, medications, and surgery certainly meet the definition of ‘significant treatment' [for carpel tunnel syndrome].” Id. at 19. But Plaintiff herself acknowledges that surgery was merely “discussed” (id.) - she presents no evidence that she actually had a surgical procedure for her carpal tunnel syndrome.
The ALJ acknowledged that Plaintiff took medications and “had an injection, which appears to have provided some short-term relief[,]” but found that Plaintiff's “treatment for her carpal tunnel syndrome has been generally conservative.” Tr. 2373. Consistent with this finding, Dr. Scott Edwards, with whom Plaintiff discussed surgery, noted that she had been receiving “conservative management with anti-inflammatory medication, physical therapy, and bracing.” Tr. 777. Similarly, Dr. Robert Gordon's examination notes state that Plaintiff “indicates that she has attempted multiple conservative therapies[,]” including anti-inflammatories, physical therapy, bracing, topical analgesics, and injections. Tr. 913. The ALJ did not err in finding that Plaintiff generally received conservative treatment for her carpal tunnel syndrome. Tr. 2373; see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (an ALJ properly may consider conservative treatment in determining the severity of an impairment); Kathy G. v. Saul, No. 5:18-CV-02489-JC, 2019 WL 6682381, at *4 (C.D. Cal. Dec. 6, 2019) (“The Court finds no material error in the ALJ's reliance on plaintiff's conservative treatment to reject Dr. Chappell's limitations.”).
In her reply, Plaintiff cites Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), for the proposition that injections are not conservative treatment. Doc. 15 at 4. But Garrison merely expressed “doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative' medical treatment.” Garrison, 759 F.3d at 1015, n.20. Even assuming the ALJ erred in finding Plaintiff's carpal tunnel syndrome treatment to be conservative, the ALJ properly relied on objective medical evidence - multiple exams showing no significant issues with hand strength, sensation, manipulation, and grip - in rejecting Dr. Fruchtman's extreme exertional and manipulative limitations. Tr. 2373, 2375 (citing Exs. 4F/3-4; 17F; 20F/3-4; 33F/2-12; 39F/1; 40F/20; 41F).
2. Lack of Muscle Atrophy.
Plaintiff cites Lapeirre-Gutt v. Astrue, 382 Fed. App'x 662 (9th Cir. 2010), for the proposition that lack of muscle atrophy provides no basis for rejecting opinion evidence. Docs. 13 at 19-20, 15 at 5. But in that case, the ALJ discounted the claimant's testimony because the lack of muscle atrophy was inconsistent with her allegations of inactivity. Lapeirre-Gutt, 382 Fed. App'x at 665. The Ninth Circuit merely noted that “no medical evidence suggested that high inactivity levels necessarily lead to muscle atrophy[.]” Id.
In this case, the ALJ found that the lack of atrophy in Plaintiff's hands (along with several other normal clinical findings) was not consistent with the extreme exertional and manipulative limitations assessed by Dr. Fruchtman - that Plaintiff can lift and carry no more than 10 pounds and can only occasionally reach and handle. Tr. 2375. The ALJ also cited to a medical record in which Dr. Gordon noted that “[t]here was no atrophy of the musculature of the bilateral hands” when discussing Plaintiff's carpal tunnel syndrome. Id.; Tr. 916 (Ex. 20F/4).
The ALJ did not err in rejecting Dr. Fruchtman's opinion based in part on the lack of atrophy in Plaintiff's hands. See Matthews v. Berryhill, No. CV-17-66-GF-BMM-JTJ, 2018 WL 2095604, at *2 (D. Mont. May 7, 2018) (“[S]ubstantial evidence exists to support the ALJ's conclusion that Dr. Peterson's opinions to Matthews's postural and lifting limitation were in conflict with his finding[] that she had . . . no muscle atrophy. The ALJ's finding of inconsistency in Dr. Peterson's record remains a specific and legitimate reason to reject Dr. Peterson's opinion.”); Hanlon v. Comm'r Soc. Sec. Admin., No. 1:16-CV-01822-MA, 2017 WL 3895554, at *8 (D. Or. Sept. 6, 2017) (“Dr. McCord's treatment notes persistently show that Plaintiff has . . . no atrophy[.] The ALJ's findings are supported by substantial evidence and provides another specific and legitimate basis for discounting Dr. McCord's opinions.”); Ostrander v. Astrue, No. 2:08-CV-02850 KJN, 2010 WL 3783693, at *12 (E.D. Cal. Sept. 27, 2010) (“The ALJ also properly rejected Dr. Revesz's opinions by noting that the clinical findings failed to show motor loss, weakness, . . . or atrophy to warrant Dr. Revesz's extreme limitations.”); see also Walker v. Colvin, No. CV15-02468-PHX-DGC, 2016 WL 7046463, at *5 (D. Ariz. Dec. 5, 2016) (affirming the ALJ's decision and noting that “the ALJ does not rely merely on the lack of atrophy . . . as her basis for rejecting the [treating physicians'] opinions” because she “provides a number of other specific reasons”).
Plaintiff notes in her reply that Dr. Fruchtman found some weakness in her wrists and hands. Doc. 15 at 5 (citing Tr. at 554). But Dr. Fruchtman concluded that her grip strength, at worst, was “4/5 bilaterally.” Tr. 554 (also noting that in “the right hand her grip strength was 4.5/5, with the left hand it was 5/5”). Plaintiff cites no evidence or legal authority suggesting that a grip strength of 4/5 supports the assessment that she can lift and carry only 10 pounds and occasionally handle objects. See Tr. 555. And “it is for the ALJ, and not the [C]ourt, to weigh evidence and resolve conflicts in the record.” Knak v. Comm'r of Soc. Sec., No. 2:20-CV-943-KJN, 2021 WL 4078016, at *4 (E.D. Cal. Sept. 8, 2021) (citing Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)).
Plaintiff further notes that Dr. Fruchtman found some cervical tenderness, tightness, and spasm with decreased range of motion. Doc. 15 at 5 (citing Tr. 553-54). Plaintiff asserts that the ALJ gave no specific reason for rejecting Dr. Fruchtman's exertional limitations. Id. at 5-6. This is incorrect.
The ALJ explained that Dr. Fruchtman's “extensive exertional limitations” are “not consistent with the totality of the medical evidence[,]” noting that multiple exams showed “normal strength, normal gait, and no apparent distress[.]” Tr. 2375; see also Tr. 2372 (explaining that while Plaintiff had some tenderness to palpation, muscle spasms, and decreased range of motion, “physical examinations also frequently noted normal strength in [her] bilateral upper and lower extremities, normal gait, no signs of distress, and normal neurological functioning”) (citations omitted). The ALJ further explained that while imaging of the spine revealed some degenerative changes and abnormalities, “there was no lateralizing disc protrusions or cord compressions at any level” and “no evidence of any nerve root impingement, progressive neurological defects, infections, or fractures to cause the severity of pain limits alleged.” Tr. 2371-72. The ALJ properly accounted for Plaintiff's cervical impairments and symptoms in finding that she could lift and carry 20 pounds and perform some light work with other restrictions. Tr. 2370-73.
3. Normal and Abnormal Exam Findings.
Plaintiff contends that the ALJ failed to identify the normal exam findings that conflicted with Dr. Fruchtman's opinion. Doc. 13 at 20-21. This also is incorrect. The ALJ cited to specific medical records showing normal strength, normal gait, and no distress. Tr. 2372, 2375 (citing Exs. 4F/4; 17F; 20F/3-4; 33F/2-12; 39F/1; 40F/20; 41F).
Plaintiff notes that some of the cited medical records, including those in Exhibits 17F and 33F, contain abnormal findings. Doc. 13 at 20-21. True, but “it is not for this Court to second guess the ALJ's reasonable interpretation of the medical record because ‘where evidence is susceptible to more than one rational interpretation, as it is here, it is the ALJ's conclusion that must be upheld.'” Adams v. Comm'r of Soc. Sec. Admin., No. CV-20-01247-PHX-JAT, 2021 WL 2644272, at *4 (D. Ariz. June 28, 2021) (citation omitted); see Magallanes, 881 F.2d at 750; Andrews, 53 F.3d at 1039-40; Johnson v. Kijakazi, No. 2:21-CV-01993-EJY, 2022 WL 3585840, at *6 (D. Nev. Aug. 22, 2022) (“When the evidence will support more than one rational interpretation, the Court must defer to the Commissioner's interpretation. Consequently, the issue before the Court is not whether the Commissioner could reasonably have reached a different conclusion, but whether the final decision is supported by substantial evidence.”) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); Juarez v. Colvin, No. CV 13-2506 RNB, 2014 WL 1155408, at *2 (C.D. Cal. Mar. 20, 2014) (“It is not the Court's role to second-guess an ALJ's rational interpretation of the evidence merely because plaintiff is able to proffer an alternative rational interpretation.”) (citing Burch, 400 F.3d at 679).
Plaintiff clearly disagrees with the RFC assessment, but the final responsibility for determining RFC is reserved to the ALJ. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)); see Best v. Comm'r of Soc. Sec. Admin., No. CV-21-08021-PCT-DGC, 2022 WL 227094, at *10 (D. Ariz. Jan. 26, 2022) (“Contrary to Plaintiff's assertion, the ALJ did not rely on her ‘lay impression' of the medical evidence. Rather, the ALJ simply summarized the medical evidence in assessing Plaintiff's RFC. This was proper because it is the responsibility of the ALJ . . . to determine RFC.”) (citations and quotation marks omitted). Where, as here, the ALJ's RFC assessment is a rational interpretation of the evidence, it must be upheld. See Hardin v. Comm'r of Soc. Sec. Admin., No. CV-21-08060-PCT-DGC, 2022 WL 4092644, at *6 (D. Ariz. Sept. 7, 2022) (“To the extent Plaintiff advocates for an alternative interpretation of the evidence in the record, the Court will not second-guess the ALJ's reasonable interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff.”).
4. Dr. Gordon's Opinion.
Plaintiff also disagrees with the ALJ's evaluation of Dr. Gordon's opinion. Docs. 13 at 20-21, 15 at 6; see Tr. 913-24 (Ex. 20F), 2375. Plaintiff contends that Dr. Gordon's abnormal findings support giving controlling weight to Dr. Fruchtman's opinion. Id. But Dr. Gordon's opinion is even less restrictive than the ALJ's RFC assessment, with lifting and carrying up to 50 pounds, frequent reaching, and continuous handling. Tr. 918-20. While Plaintiff points to a few abnormal findings, she ignores Dr. Gordon's other findings, such as normal gait and balance; normal muscle bulk with no atrophy; full strength in the upper and lower extremities; normal wrists, hands, and grip strength; intact sensation; and normal fine motor skills. Tr. 915-17.
Plaintiff complains that Dr. Gordon assessed no meaningful limitation despite stating that Plaintiff's symptoms “may limit [her] mobility.” Doc. 13 at 21 (quoting Tr. 918). But Plaintiff shows no error on the part of the ALJ in this regard. See Doc. 14 at 11. And while Dr. Gordon stated that Plaintiff's conditions “may” limit her mobility, he clearly did not agree with the degree of limitation that Plaintiff alleges. See id.; Tr. 913-24.
It is worth noting that the ALJ gave only partial weight to Dr. Gordon's opinion, finding his assessment of Plaintiff's “exertional capabilities greater than the record supports given her history of degenerative disc disease and osteoarthritis.” Tr. 2375.
5. Plaintiff's Shoulder Surgery.
Plaintiff claims that the ALJ failed to cite records showing that her left shoulder surgery improved her symptoms. Doc. 13 at 21. Plaintiff is wrong. The ALJ identified records showing normal strength in the upper extremities after Plaintiff's shoulder surgery, which suggests that the surgery was helpful. Tr. 2372, 2375 (citing Exs. 17F; 20F/3-4). One of the cited treatment notes shows a normal shoulder exam with no tenderness, deformity, or atrophy, and the physician stated that Plaintiff's “shoulder is improved” and he did “not believe her shoulder is a significant source of disability for her.” Tr. 785-787 (Ex. 17F/85-87).
The Court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallenes, 881 F.2d at 755; see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“Even when an agency explains its decision with less than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.”) (citations and quotation marks omitted).
6. The ALJ Properly Rejected Dr. Fruchtman's Opinion.
The ALJ provided specific and legitimate reasons for rejecting Dr. Fruchtman's extreme exertional and manipulative limitations. See Lester, 81 F.3d at 830; Magallanes, 881 F.2d at 751. And contrary to Plaintiff's suggestion (Doc. 13 at 21-22), the ALJ's rejection of Dr. Fruchtman's opinion easily “clear[s] the low substantial evidence bar.” Ford, 950 F.3d at 1159; see Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that the “substantial evidence” threshold “is not high”); Esparza v. Comm'r of Soc. Sec. Admin., No. CV-20-00142-PHX-DJH, 2021 WL 527378, at *6 (D. Ariz. Feb. 12, 2021) (“Because substantial evidence is a relatively low evidentiary threshold, the ALJ's conclusion is entitled to deference”); Minnifield v. Comm'r of Soc. Sec. Admin., No. CV-20-00913-PHX-MTL, 2021 WL 100105, at *3 (D. Ariz. Jan. 12, 2021) (“Ultimately, the evidence on [the] issue [of improvement with treatment] points in either direction. Because substantial evidence is a relatively low evidentiary threshold and highly deferential, Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009), the ALJ's interpretation of the evidence was reasonable.”).
In determining Plaintiff's RFC, the ALJ did not adopt a single medical source opinion and instead assessed specific limitations on a function-by-function basis best supported by the evidence as a whole. Tr. 2374-75. The ALJ did, however, give substantial weight to the opinions of Drs. Goodrich and Griffith that Plaintiff was able to perform light work with restrictions, and the opinions of Drs. Tomak and Titus regarding Plaintiff's ability to interact with others. Tr. 2375-76. Plaintiff has not shown that those medical opinions do not constitute substantial evidence supporting the ALJ's decision. See Lester, 81 F.3d at 831 (this Circuit has “upheld the Commissioner's decision to reject the opinion of a treating or examining physician, based in part on the testimony of a nonexamining medical advisor”) (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (opinions of nonexamining physicians may “serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record”) (citations omitted).
B. The ALJ's Step Five Finding.
At step five, the ALJ relied on the vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”) in finding that Plaintiff was able to perform three jobs -office helper, mail clerk, and storage facility rental clerk. Tr. 2378-79, 2409-12.
An ALJ may consult the DOT to identify jobs in the national economy that are consistent with a claimant's RFC and relevant vocational factors. 20 C.F.R. §§ 416.966, 416.969; Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). Appendix C to the DOT sets forth criteria for evaluating jobs based on their physical and mental requirements. DOT, Appx. C - Components of the Definition Trailer, 1991 WL 688702 (4th ed. 1991).
1. Mail Clerk and Rental Clerk.
Plaintiff argues, correctly, that she could not work as a mail or rental clerk because these positions require Level 3 reasoning, which exceeds her RFC limitation to simple instructions. Doc. 13 at 16 (citing Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (holding that “there is an apparent conflict between the [RFC] to perform simple, repetitive tasks, and the demands of Level 3 Reasoning”)); Tr. 2646 (same).
Level 3 reasoning requires the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral or diagrammatic form.” Hernandez v. Berryhill, 707 Fed.Appx. 456, 458 n.2 (9th Cir. 2017) (citation omitted). Level 2 reasoning only requires the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.” Id. at 459 n.4.
As Defendant notes, however, the ALJ's error in this regard is harmless because the office helper job requires only Level 2 reasoning, which is consistent with Plaintiff's limitation to simple instructions. Doc. 14 at 6 (citing Hernandez 707 Fed.Appx. at 458-59 (the ALJ's finding that the claimant could perform two jobs at Level 3 reasoning was harmless where the ALJ also found that she could perform a job requiring only Level 2 reasoning)); see also Barela v. Astrue, No. CV-09-01773-PHX-FJM, 2010 WL 5013829, at *6 (D. Ariz. Dec. 3, 2010) (“[T]he ALJ's error in finding that plaintiff was qualified for the position of packer is harmless because there is no conflict between the DOT and the VE's testimony regarding . . . office helper.”); Perez v. Berryhill, No. 2:17-CV-01798-GJS, 2018 WL 3636883, at *4 (C.D. Cal. July 29, 2018) (“Because the ALJ did not err in finding Plaintiff could perform the job of officer helper, Plaintiff's ability to perform that job is sufficient to support the ALJ's step-five finding. Accordingly, even though the ALJ erred in finding Plaintiff could perform the jobs of linen room attendant and small products assembler, the error was harmless.”) (citing Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Gallo v. Comm'r of Soc. Sec. Admin., 449 Fed.Appx. 648, 650 (9th Cir. 2011)).
2. Office Helper.
According to the DOT, an office helper:
Performs any combination of [the] following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles and records.DOT, 239.567-010, 1991 WL 672232.
a. Occasional Interaction.
Plaintiff contends that the plain language of the office helper position exceeds her RFC limitation of interacting with coworkers occasionally (one-third of the time). Doc. 13 at 17; see DOT, 239.567-010, 1991 WL 672232; SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1, 1983). The Court does not agree.
The DOT measures the degree of interaction with people in each job type on a scale of one to eight: (1) mentoring, (2) negotiating, (3) instructing, (3) supervising, (4) diverting, (5) persuading, (6) speaking-signaling, (7) serving, and (8) taking instructions-helping. See Kane v. Saul, No. 3:18CV746 (HEH), 2019 WL 7562760, at *15 (E.D. Va. Aug. 20, 2019) (citing DOT, App. B - Explanation of Data, People, and Things, 1991 WL 688701 (1991)). “General office helpers can expect to perform the lowest three functions: speaking-signaling (level six), serving (level seven) and taking instructions-helping (level eight).” Id.
The DOT defines speaking-signaling as “[t]alking with and/or signaling people to convey or exchange information” and “giving assignments and/or directions to helpers or assistants.” Howell v. Astrue, No. CV 10-1241 LFG/CG, 2012 WL 13081662, at *20 (D.N.M. Mar. 20, 2012).
Level six “is nearly the lowest rating possible for interacting with people[.]” Howell, 2012 WL 13081662, at *20 (citation omitted). And the DOT “characterizes relationships with other people as a ‘not significant' aspect of the [office helper] job.” Kane, 2019 WL 7562760, at *15 (citing DOT, 239.567-010); see also Vizzini v. Berryhill, No. 1:17CV233-RJC, 2018 WL 6118623, at *4 (W.D. N.C. Apr. 2, 2018) (“[T]he DOT clearly defines the office helper['s] . . . relationship with people as ‘Not Significant.'”); Hayes v. Colvin, No. 3:13-CV-01506-MC, 2014 WL 7405647, at *8 (D. Or. Dec. 30, 2014) (“As defined in DOT § 239.567-010, . . . the need for speaking and signaling in an office helper position is not significant.”); Thomas v. Comm'r, Soc. Sec., No. CIV. WDQ-10-3070, 2012 WL 670522, at *6 (D. Md. Feb. 27, 2012) (“The office helper's interaction with other people is ‘not significant,' . . . [and] [t]alking occurs ‘occasionally,' up to one-third of the time[.]”); Barela v. Astrue, No. CV-09-01773-PHX-FJM, 2010 WL 5013829, at *6 (D. Ariz. Dec. 3, 2010) (“There is nothing in the DOT provisions for [the office helper] position indicating that more than limited coworker conduct is required. In fact, [the] position[] rate[s] interaction with people as ‘not significant' and list the skills of talking and hearing as occasional or not present.”) (citations omitted).
“Jobs that rank the interaction-with-others function as ‘not significant' adequately account for limitations on a claimant's ability to interact with the public, co-workers and supervisors.” Kane, 2019 WL 7562760, at *15. Because the “office helper position requires only sporadic interaction with others, . . . it does not exceed [Plaintiff's] limitation in interaction.” Alires v. Astrue, No. CV 10-1236 JAP/WPL, 2011 WL 13279030, at *7 (D.N.M. Dec. 16, 2011) (citing DOT 239.567-010); see Ridley G. v. Comm'r of Soc. Sec., No. 1:20-CV-773 (CFH), 2021 WL 4307507, at *13 (N.D.N.Y. Sept. 22, 2021) (“[T]o the extent that plaintiff argues that these jobs require more interaction with coworkers than the RFC permits, her arguments are belied by the DOT definitions for those jobs. The positions of office helper and photocopying machine operator require only a level 6 for social interaction, . . . and all of these positions . . . indicat[e] that the degree of relation to people is ‘Not Significant.'”); Miller v. Saul, No. 5:19 CV 120 MOC WCM, 2020 WL 4458468, at *5 (W.D. N.C. July 9, 2020) (“[T]here is no indication that [the office helper] occupation requires sustained and critical conversations with the public or more than occasional interaction with supervisors and coworkers. Accordingly, no apparent conflict exists between the VE's testimony and the DOT's description of Office Helper.”); Perez, 2018 WL 3636883, at *4 (“[T]here is nothing in the record to suggest that the interaction with coworkers and the public required of the office helper job would be in excess of Plaintiff's RFC limitation for incidental interaction with coworkers and the public. As such, the Court finds no conflict between the DOT and the VE's testimony that someone with Plaintiff' limitations can perform the job of office helper.”).
Plaintiff's citation to Ratliff v. Colvin, No. 3:12-CV-02326-HU, 2014 WL 1269505, at *2 (D. Or. Mar. 26, 2014), is misplaced. Docs. 13 at 17-18, 15 at 2. Although the vocational expert in Ratliff testified that the job of office helper would require more than occasional interaction with coworkers and supervisors, neither the ALJ nor the district court reached that conclusion. See 2014 WL 1269505, at *3-7. And as Defendant notes, the district court affirmed the ALJ's decision to deny benefits. See id. at *7; Doc. 14 at 7.
b. Occasional Overhead Reaching.
Plaintiff notes that one district court has found that the DOT's description of office helper includes multiple tasks that likely would require overhead reaching. Docs. 13 at 18, 15 at 3 (citing Burdette v. Berryhill, No. CV 16-05240-JDE, 2017 WL 6453264, at *5 (C.D. Cal. Dec. 14, 2017)). Plaintiff claims that the ALJ erred by failing to ask the vocational expert to clarify the “conflict” between the DOT and her opinion that a person with Plaintiff's RFC could work as an office helper. Id.
In Burdette, the district court concluded that “[t]he [DOT] description, and common experience, of sorting, distributing, marking and filing items is similar to the duties of stocking clerks - duties which the Ninth Circuit found to require frequent overhead reaching.” 2017 WL 6453264, at *5 (citing Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016)). But the district court did not explain, and it is not otherwise clear to this Court, why sorting, distributing, marking, and filing items would involve reaching overhead frequently - up to two-thirds of the time. The DOT indicates that an office helper would need to reach frequently, DOT, 239-567-010, but nothing suggests that all reaching would be overhead. See Guttierrez, 844 F.3d at 808 (noting that “not every job that involves reaching requires the ability to reach overhead”); Hopkins v. Berryhill, No. EDCV 1502413 AJW, 2017 WL 923902 at * 5 (C.D. Cal. Mar. 6, 2017) (“The DOT job description of an office helper permits the inference that some overhead work may be required, such as retrieving clerical supplies from overhead storage, but nothing in that job description suggests more than occasional overhead work is required.”); Lisa P. v. Comm'r of Soc. Sec., No. 3:19-CV-05147-TLF, 2020 WL 1443875, at *6 (W.D. Wash. Mar. 24, 2020) (“Two of the jobs cited by the VE - general clerk and office helper - are office-based jobs that do not obviously require more than occasional overhead reaching”).
The Ninth Circuit explained in Guttierrez that for a difference between an expert's testimony and the DOT to be fairly characterized as a conflict, it must be “obvious or apparent” and “at odds” with the DOT's listing of job requirements that are “essential, integral, or expected.” 844 F.3d at 808. Plaintiff has not shown that frequent overhead reaching is an essential, integral, or expected requirement for an office helper. Nor has she otherwise shown an obvious or apparent conflict between the vocational expert's testimony (Tr. 2409-14) and the DOT (239-567-010). See Carrie E. N. v. Saul, No. 19-CV-126-FHM, 2020 WL 1330433, at *2 (N.D. Okla. Mar. 23, 2020) (“Plaintiff cannot show an apparent conflict between the limitation of avoiding overhead work and the DOT description for office helper.”); Daniel W. E. v. Comm'r, Soc. Sec. Admin., No. 6:18-CV-00169-JE, 2019 WL 3716899, at *4 (D. Or. Aug. 7, 2019) (finding that it was “not apparent that the DOT was in conflict with the VE's testimony” because “overhead reaching is not specifically discussed in the DOT job description[] for [office helper].”); Smith v. Comm'r of Soc. Sec. Admin., No. CV-11-01623-PHX-GMS, 2018 WL 3134882 at *4 (D. Ariz. June 27, 2018) (finding that “it was not necessarily obvious that a conflict existed” between the expert's testimony and the DOT description of office helper regardless of whether the plaintiff could reach overhead with one arm or neither arm); Ibach v. Colvin, No. EDCV 15-2647-AJW, 2017 WL 651940 at *4 (C.D. Cal. Feb 15, 2017) (“[I]t is not obvious or apparent that an office helper, whose primary duties include taking and distributing messages, files and paperwork, would need to reach overhead frequently.”).
The ALJ therefore did not err at step five in finding that Plaintiff was able to work as an office helper. See Stainthorp v. Berryhill, No. 1:17-CV-00934-GSA, 2018 WL 5619737, at *7 (E.D. Cal. Oct. 29, 2018) (rejecting Burdette and agreeing with “the consensus opinion that because the necessity of reaching overhead when working as an office helper is not likely and foreseeable, the ALJ was not required to question the vocational expert further about consistency between her opinion and the DOT”) (citations omitted); Bennett v. Comm'r of Soc. Sec., No. 2:17-CV-582-FTM-MRM, 2019 WL 410271, at *8 (M.D. Fla. Feb. 1, 2019) (“[T]he DOT . . . provide[s] a requirement for reaching in general, but [does] not include any mention of overhead reaching. Thus, the Court finds that there is no apparent conflict in this case that the ALJ is required to address . . . [and] the ALJ properly relied on the vocational expert's testimony that an individual with the limitation of no overhead reaching is capable of performing the job[] of . . . office helper.”); Alba v. Berryhill, No. ED CV 15-2524-SP, 2017 WL 1290484, at *4 (C.D. Cal. Apr. 4, 2017) (“All three jobs identified by the VE require frequent or constant reaching. But similar to cashiers discussed in Gutierrez, it is uncommon for office helpers . . . to have to engage in overhead reaching[.] While some office helpers . . . may have to reach overhead in certain circumstances, the frequency or necessity of overhead reaching is unlikely and unforeseeable. Accordingly, the ALJ did not have to ask the VE follow up questions and correctly relied on the VE's testimony, which constituted substantial evidence.”).
IT IS ORDERED that the final decision of the Commissioner of Social Security denying Plaintiff's claim for disability insurance benefits and supplemental security income (Tr. 2360-89) is affirmed. The Clerk of Court shall enter judgment.