Ford v. Saul

• Decision Date: 20 February 2020
• Docket Number: No. 18-35794,18-35794
• Citation: 950 F.3d 1141
• Parties: Michelle Salise FORD, Plaintiff-Appellant, v. Andrew M. SAUL, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

950 F.3d 1141

Michelle Salise FORD, Plaintiff-Appellant,

v.Andrew M. SAUL, Commissioner of Social Security, Defendant-Appellee.

No. 18-35794

United States Court of Appeals, Ninth Circuit.

Submitted October 22, 2019^* Seattle, Washington

Filed February 20, 2020

George Andre Fields, Invictus Legal Services, Sacramento, California, for Plaintiff-Appellant.

Brian T. Moran, United States Attorney; Kerry Jane Keefe, Assistant United States Attorney; Mathew W. Pile, Acting Regional Chief Counsel; Christopher J. Brackett, Special Assistant United States Attorney; Office of the General Counsel, Social Security Administration, Region X, Seattle, Washington; for Defendant-Appellee.

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Jed S. Rakoff,^** District Judge.

IKUTA, Circuit Judge:

In this appeal from a decision of the Social Security Administration, Michelle Ford claims that the administrative law judge (ALJ) erred in: (1) failing to give weight to the opinions of two of her physicians; (2) concluding that her impairments were not per se disabling under the regulatory listings; and (3) denying her request to subpoena the data underlying a vocational expert’s testimony. Because the ALJ properly provided specific and legitimate reasons for discounting the opinions of Ford’s physicians, correctly concluded that Ford’s impairments did not meet a listing, and was entitled to rely on the vocational expert’s testimony despite the expert’s failure to provide information about the sources underlying the testimony, we affirm.

I

To determine whether an individual is disabled within the meaning of the Social Security Act, and therefore eligible for benefits, an ALJ follows a five-step sequential evaluation. See 20 C.F.R. § 404.1520.¹ The burden of proof is on the claimant at steps one through four. See Valentine v. Comm’r of Soc. Sec. Admin. , 574 F.3d 685, 689 (9th Cir. 2009). At step one, the ALJ must determine if the claimant is presently engaged in a "substantial gainful activity," § 404.1520(a)(4)(i), defined as "work done for pay or profit that involves significant mental or physical activities," Lewis v. Apfel , 236 F.3d 503, 515 (9th Cir. 2001) (citing §§ 404.1571–404.1572, 416.971–416.975). At step two, the ALJ decides whether the claimant’s impairment or combination of impairments is "severe," § 404.1520(a)(4)(ii), meaning that it significantly limits the claimant’s "physical or mental ability to do basic work activities," § 404.1522(a); see Webb v. Barnhart , 433 F.3d 683, 686 (9th Cir. 2005).

At step three, the ALJ evaluates whether the claimant has an impairment, or combination of impairments, that meets or equals the criteria of any of the impairments listed in the "Listing of Impairments" (referred to as the "listings"). See § 404.1520(a)(4)(iii) ; 20 C.F.R. Pt. 404 Subpt. P, App. 1 (pt. A). The listings describe impairments that are considered "to be severe enough to prevent an individual from doing any gainful activity." § 404.1525(a). Each impairment is described in terms of "the objective medical and other findings needed to satisfy the criteria of that listing." § 404.1525(c)(3). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley , 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (footnote omitted). If an impairment does not meet a listing, it may nevertheless be "medically equivalent to a listed impairment" if the claimant’s "symptoms, signs, and laboratory findings are at least equal in severity to" those of a listed impairment. § 404.1529(d)(3).² But a claimant cannot base a claim of equivalence on symptoms alone. Even if the claimant alleges pain or other symptoms that makes the impairment more severe, the claimant’s impairment does not medically equal a listed impairment unless the claimant has signs and laboratory findings that are equal in severity to those set forth in a listing. § 404.1529(d)(3). If a claimant’s impairments meet or equal the criteria of a listing, the claimant is considered disabled. § 404.1520(d).

If the claimant does not meet or equal a listing, the ALJ proceeds to step four, where the ALJ assesses the claimant’s residual functional capacity (RFC)³ to determine whether the claimant can perform past relevant work, § 404.1520(e), which is defined as "work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it," § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can perform past relevant work, the claimant is not disabled. § 404.1520(f).

At step five, the burden shifts to the agency to prove that "the claimant can perform a significant number of other jobs in the national economy." Thomas v. Barnhart , 278 F.3d 947, 955 (9th Cir. 2002). To meet this burden, the ALJ may rely on the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404 Subpt. P, App. 2,⁴ or on the testimony of a vocational expert. Tackett v. Apfel , 180 F.3d 1094, 1101 (9th Cir. 1999). "[A] vocational expert or specialist may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy." § 404.1560(b)(2). An ALJ may also use "other resources, such as the ‘Dictionary of Occupational Titles’ and its companion volumes and supplements, published by the Department of Labor." Id.

Throughout the five-step evaluation, the ALJ "is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995).

II

We now turn to the facts of this case. On October 24, 2008, Michelle Ford applied for disability benefits under Title II and XVI. Her first disability application was denied in 2011; the ALJ found that Ford was not disabled for the period between August 2007 and March 2011, and that decision became final when Ford declined to appeal it further. Ford then filed a second application for benefits, claiming that she became disabled on March 26, 2011, due to a variety of physical and mental impairments

. In January 2015, an ALJ held that Ford was disabled as of November 1, 2012, but not before that date. The Appeals Council vacated the decision and remanded for a new hearing, which the ALJ conducted in November 2016. At the hearing, Ford introduced evidence regarding both her physical and mental impairments. In March 2017, the ALJ ruled that Ford was not disabled for the period from March 26, 2011 to January 2, 2016. The Appeals Council denied Ford’s request for review, and the district court affirmed. This appeal followed.

A

The following evidence regarding Ford’s alleged physical impairments, adduced at the November 2016 hearing, is relevant to this appeal. Over the course of 2011, Ford routinely visited Dr. Ignatius Medani, her primary care physician. She typically reported back pain, shoulder pain, nausea, and anxiety. Dr. Medani’s notes, however, showed few objective findings related to her pain and no consistent abnormalities, outside of a diagnosis of "very mild" carpal tunnel syndrome

. He frequently prescribed pain medications at Ford’s request. In October 2011, a non-examining physician examined Ford’s medical record as part of her application for benefits. His report concluded that Ford was not disabled because her RFC allowed her to perform sedentary work.

In April 2012, Ford had surgery on her right foot for heel spurs

and Achilles tendinitis. In December 2012, another non-examining physician reviewed Ford’s medical record and concluded that Ford was not disabled. Ford’s condition continued to improve over the course of 2013 and 2014. In September 2014, Ford had surgery to remove a bunion and a soft tissue mass on her right toe. During recovery, she used a scooter to avoid putting weight on the affected foot. In August and September 2014, Ford saw Dr. Medani several times for medication refills. The examinations at these visits were unremarkable, and Dr. Medani made few notes. Other than a finding of reduced lumbar range of motion, Dr. Medani noted no abnormalities.

In late September 2014, Dr. Medani filled out an "Arthritis

Residual Functional Capacity Questionnaire." The questionnaire set out the disability criteria of Listings 1.02 and 1.03 from the "Listings of Impairments."

Listing 1.02 is entitled "Major dysfunction of a joint(s) (due to any cause)," and describes that impairment as "[c]haracterized by gross anatomical deformity" and involving a "major peripheral weight bearing joint (i.e., hip, knee or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02.⁵

Listing 1.03 is entitled "Reconstructive surgery or surgical arthrodesis

of a major weight-bearing joint," and the impairment is characterized by "inability to ambulate effectively, as defined in 1.00B2b." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.03.⁶

Section 1.00(B)(2)(b) provides a detailed definition of the term "inability to ambulate effectively." See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b)(1). According to the definition section, "[i]nability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities." Id. Further, "[i]neffective ambulation is defined generally as having insufficient lower extremity functioning ... to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of...