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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jennifer Spooner, 

Plaintiff, 

v. 

Carolyn W. Colvin, Acting Commissioner 

of Social Security, 

Defendant. 

No. CV-15-01699-PHX-NVW 

ORDER 

Plaintiff Jennifer Spooner seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security (“the Commissioner”), which denied her 

disability insurance benefits and supplemental security income under sections 216(i), 

223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the 

Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based 

on legal error, the Commissioner’s decision will be affirmed. 

I. BACKGROUND 

Plaintiff was born in September 1976. She completed ninth grade and has a GED. 

She has worked as a waitress, bartender, and hostess. She suffers primarily from neck 

and lower back pain and migraine headaches. She was 29 years old on the alleged onset 

date of disability, December 15, 2005. She lives with her disabled father and two 

daughters, one of which was born on December 15, 2005, and the other on November 20, 

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2001. In May 2012, she reported being able to drive, go out alone, shop for groceries 

weekly, feed pets, do laundry, wash dishes, watch television, walk one flight of stairs, go 

outside a few times daily, and walk for ten minutes before needing to rest. In 2010 and 

2013, Plaintiff reported exercising regularly. 

On February 3, 2012, Plaintiff applied for disability insurance benefits and 

supplemental security income, alleging disability beginning December 15, 2005. On 

March 3, 2014, she appeared with her attorney and testified at a hearing before the ALJ. 

A vocational expert also testified. On April 7, 2014, the ALJ issued a decision that 

Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals 

Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s 

decision the Commissioner’s final decision. On August 27, 2015, Plaintiff sought review 

by this Court. 

In her opening brief, Plaintiff identified three issues for this appeal: 

1. Did the ALJ mischaracterize Plaintiff’s treating physician’s surgical 

recommendation because reconstructive surgery is by definition 

debilitating, and, if so, was it harmful error? 

2. Did the ALJ properly consider Plaintiff’s fibromyalgia as required under 

SSR 12-2p? 

3. Was the ALJ’s conclusion that Plaintiff could return to her past work as a 

hostess supported by substantial evidence? 

In response, in the context of the second issue, Defendant stated that Plaintiff’s opening 

brief had not challenged the ALJ’s credibility determination and therefore Plaintiff 

waived it. In her reply, Plaintiff stated that because the ALJ’s credibility determination is 

wholly irrelevant to Plaintiff’s objectively severe impairments, Plaintiff did not want to 

waste the Court’s time arguing harmless error. But she also stated that credibility 

determinations now are improper under SSR 16-3p, published on March 28, 2016. The 

Court granted Defendant leave to file a surreply to address issues raised for the first time 

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in Plaintiff’s reply and granted Plaintiff leave to respond to Defendant’s surreply. The 

Court has reviewed and considered all of the parties’ briefing. 

II. STANDARD OF REVIEW 

The district court reviews only those issues raised by the party challenging the 

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Claims that 

are not actually argued in an appellant’s opening brief are not considered on appeal. 

Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Only 

issues that are argued specifically and distinctly in a party’s opening brief are reviewed. 

Id. Moreover, “when claimants are represented by counsel, they must raise all issues and 

evidence at their administrative hearings to preserve them on appeal.” Meanel v. Apfel, 

172 F.3d 1111, 1115 (9th Cir. 1999). Failure to do so will only be excused when 

necessary to avoid a manifest injustice. Id. 

A court may set aside the Commissioner’s disability determination only if the 

determination is not supported by substantial evidence or is based on legal error. 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 considering the record as a whole. Id. In determining 

whether substantial evidence supports a decision, the court must consider the record as a 

whole and may not affirm simply by isolating a “specific quantum of supporting 

evidence.” Id. Generally, when the evidence is susceptible to more than one rational 

interpretation, courts must uphold the ALJ’s findings if they are supported by inferences 

reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 

2012). “Overall, the standard of review is highly deferential.” Rounds v. Comm’r Soc. 

Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015). 

Social Security Rulings (“SSRs”) do not carry the force of law, but they reflect the 

official interpretation of the Social Security Administration and are binding on ALJs. 

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). They are entitled to some 

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deference to the extent they are consistent with the Social Security Act and regulations. 

Id. 

Harmless error principles apply in the Social Security Act context. Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 

substantial evidence supporting the ALJ’s decision and the error does not affect the 

ultimate nondisability determination. Id. The claimant usually bears the burden of 

showing that an error is harmful. Id. at 1111. 

III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 

To determine whether a claimant is disabled for purposes of the Social Security 

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 engaging in 

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 

has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). 

If not, the claimant is not disabled and the inquiry ends. Id. 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. Pt. 404. 

§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If 

not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual 

functional capacity and determines whether the claimant is still capable of performing 

past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the 

inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines 

whether the claimant can perform any other work based on the claimant’s residual 

functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 

claimant is not disabled. Id. If not, the claimant is disabled. Id. 

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At step one, the ALJ found that Plaintiff meets the insured status requirements of 

the Social Security Act through September 30, 2007, and that she has not engaged in 

substantial gainful activity since December 15, 2005, the alleged onset date. At step two, 

the ALJ found that Plaintiff has the following severe impairments: degenerative disc 

disease of the lumbar and cervical spine, polyarthralgia, hypertension, fibromyalgia, and 

migraine headaches. At step three, the ALJ determined that Plaintiff does not have an 

impairment or combination of impairments that meets or medically equals an impairment 

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 

At step four, the ALJ found that Plaintiff: 

has the residual functional capacity to perform light work as defined in 20 

CFR 404.1567(b) and 416.967(b) except she is precluded from climbing 

ladders, ropes and scaffolds; she can occasionally climb ramps and stairs, 

and crawl; she can frequently stoop, crouch, and kneel; she can perform 

occasional bilateral overhead reaching; and she should avoid concentrated 

exposure to excessive noise and excessive lighting. 

The ALJ further found that Plaintiff is capable of performing past relevant work as a 

hostess. 

IV. ANALYSIS 

A. The ALJ Did Not Mischaracterize Plaintiff’s Treating Physician’s 

Surgical Recommendation. 

Plaintiff contends the ALJ mischaracterized the recommendation of neurosurgeon 

Dr. Christopher Iannotti and erroneously concluded that Plaintiff’s treatment was 

“conservative and routine” without addressing the debilitating nature of reconstructive 

surgery. 

Plaintiff first consulted with Dr. Iannotti on January 10, 2013. He noted that 

Plaintiff described a ten-year history of neck pain and treatment consisting of narcotic 

pain medication and cervical epidural spinal injections. After examining Plaintiff and 

reviewing an MRI of her neck, Dr. Iannotti said that Plaintiff’s options consisted of 

“continued conservative non-operative management versus surgical intervention 

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consisting of C4-5 anterior cervical discectomy fusion.” He said that Plaintiff was “a 

very reasonable candidate for surgery,” but he did not feel this was an “emergency.” 

Further, Dr. Iannotti said, “I do not necessarily feel that she must undergo surgery at this 

time.” However, Dr. Iannotti recommended that Plaintiff not wait more than three to six 

months to undergo surgery. 

Plaintiff saw Dr. Iannotti again on January 23, 2013. Dr. Iannotti noted that 

Plaintiff continued to use nicotine in the form of electronic cigarettes and he 

recommended cessation of all nicotine products prior to surgery. He further noted that 

they would try to schedule surgery in two months to allow time for smoking cessation. 

There is no evidence in the record that Plaintiff ever received treatment from Dr. Iannotti 

or ever saw him again. 

In March 2013, Plaintiff began seeing Family Nurse Practitioner Chad Dance at 

Advanced Pain Management where she received monthly refills of prescription pain 

medication. In March, April, and May 2013, Plaintiff told FNP Dance that surgery was 

recommended but she was “holding off.” In April and May 2013, FNP Dance noted: 

“Will defer surgery as recommended by the neurosurgeon for now until conservative 

measures do not reduce the pain.” On June 6, 2013, Dr. Brian Page performed a 

diagnostic cervical medial branch block to determine whether radiofrequency ablation of 

the thoracic medial branch nerves would resolve Plaintiff’s pain. On June 14, 2013, 

Plaintiff reported to FNP Dance that she had not experienced any reduction in pain after 

the cervical medial branch block. FNP Dance noted: “Will consider a spinal surgeon 

referral for second opinion for cervical spinal surgery. Will defer surgery as 

recommended by the neurosurgeon for now until conservative measures do not reduce the 

pain.” In July, August, and September 2013, FNP Dance noted that “she is currently in 

the work up for cervical fusion, she states she has blood work to do and then she will be 

ready for surgery.” However, she said she was putting off the blood work because she 

was afraid of the surgery. In October 2013, FNP Dance noted that Plaintiff was going to 

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schedule lumbar transforaminal injections and follow up with her surgeon regarding neck 

surgery. 

Plaintiff had not undergone the proposed fusion surgery before the ALJ hearing on 

March 3, 2014. During the hearing, the ALJ asked Plaintiff why Dr. Iannotti stated on 

January 10, “I do not necessarily feel that she must undergo surgery at this time,” but 

then on January 23 said surgery would be rescheduled. Plaintiff’s counsel clarified that 

Dr. Iannotti had said Plaintiff was a reasonable candidate for surgery, but it did not need 

to be done urgently. The ALJ’s hearing decision correctly stated that the initial plan was 

to continue “conservative, non-operative management,” but two weeks later “the plan 

included neck surgery once the claimant ceased smoking.” The fact that Plaintiff 

postponed the surgery more than a year implies that it was not urgently needed. 

Plaintiff incorrectly argues that the ALJ “does not address Dr. Iannotti’s findings 

directly, in effect finding that Dr. Iannotti’s statement deserved no weight.” In fact, the 

ALJ cited Dr. Iannoti’s physical examination findings, which included normal sensation, 

muscle strength, and reflexes. The findings also included normal walking and observing 

no acute distress. Dr. Iannotti reported that Plaintiff denied having back pain, joint pain, 

joint swelling, muscle cramps, muscle weakness, stiffness, or arthritis. The ALJ was not 

required to assign any weight to Dr. Iannotti’s recommendation that Plaintiff have 

surgery eventually. Dr. Iannotti never treated Plaintiff and did not provide a medical 

source statement or a medical opinion regarding Plaintiff’s functionality. 

Further, the ALJ’s conclusion that Plaintiff’s treatment for neck pain was 

conservative is unrelated to his interpretation of Dr. Iannotti’s surgical recommendation. 

The ALJ noted that despite an alleged onset date of December 15, 2005, there was no 

evidence of continuous and regular treatment for any condition until January 2007. The 

ALJ further stated that “most of the treatment notes documented conservative treatment 

consisting of pain medications only” with multiple illustrative citations, which do not 

include Dr. Iannotti’s office visit notes because he did not prescribe any treatment. While 

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injections may be invasive, multiple medical sources in the record referred to them as 

conservative treatment. 

Finally, it is irrelevant whether the proposed cervical fusion would have been 

debilitating. Plaintiff did not have it.123

 1

 Plaintiff misstates the holding of Garrison v. Colvin, 759 F.3d 995, 1015 (9th 

Cir. 2014). The Ninth Circuit found error not because epidural injections and physical 

therapy were referred to as “conservative” treatments, but because the ALJ’s conclusion 

that Garrison’s condition improved was not supported by the record. 

2

 Plaintiff mentions in passing that Listings 1.03, 1.04, and 14.09 are satisfied 

because the evidence of record documents an inability to ambulate “efficiently.” The 

requirement is “effective,” not “efficient,” and under the Listings limitations in climbing, 

balancing, stooping, crouching, and crawling do not constitute ineffective ambulation. 

She does not use a walker or two canes, and she is able to carry out routine ambulatory 

activities, such as shopping. In January 2012, Dr. David Towns observed that Plaintiff 

had normal gait and station and said she could participate in an exercise program. 

3

 Plaintiff’s opening brief wanders from the issue she identified as the ALJ’s 

mischaracterization of Dr. Iannotti’s recommendation for surgical intervention to a 

rambling discussion of medical opinions. Although not properly raised as an issue on 

appeal, the ALJ gave specific, legitimate, clear, and convincing reasons supported by 

substantial evidence in the record for giving Dr. Dale Ratcliff’s one-page November 15, 

2012 migraine headache assessment little weight. Dr. Ratcliff wrote that Plaintiff had not 

worked for two years due to chronic migraines. The ALJ gave the headache assessment 

little weight because it does not explain how headaches interfere with Plaintiff’s ability to 

work; Dr. Ratcliff is a pain management specialist, not a headache specialist; Plaintiff 

was removed from pain management because she violated the narcotics agreement; and 

the assessment is inconsistent with other medical opinions, objective testing, and 

Plaintiff’s reported activities of daily living. See Orn v. Astrue, 495 F.3d 625, 632 (9th 

Cir. 2007); 20 C.F.R. § 404.1527(c). Further, the ALJ did not reject Dr. Ratcliff’s 

Physical Residual Functional Capacity Assessment in which he assessed limitations 

consistent with the ability to perform a range of light-exertion work. The ALJ rejected 

only Dr. Ratcliff’s limitations on stooping, kneeling, crouching, and crawling because 

those limitations were not supported by the objective record. 

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B. The ALJ Properly Considered Plaintiff’s Fibromyalgia as Required 

Under SSR 12-2p. 

Plaintiff contends the ALJ “harmfully failed to follow the Defendant’s agency 

policy [SSR 12-2p] and when Plaintiff’s fibromyalgia is properly considered, disability is 

established.” 

Under SSR 12-2p, evidence of fibromyalgia must be provided by a licensed 

physician who reviewed the claimant’s medical history and conducted a physical exam. 

SSR 12-2p describes two sets of criteria for diagnosing fibromyalgia. Plaintiff has not 

identified record evidence showing that a licensed physician found that she meets either 

set of criteria. Neither the ALJ nor Plaintiff cited to any record evidence showing that a 

licensed physician formally diagnosed fibromyalgia or reporting any medical findings 

supporting such a diagnosis. On January 23, 2013, Dr. Iannotti referred Plaintiff to a 

rheumatologist for evaluation of “possible rheumatoid arthritis and/or fibromyalgia,” but 

the record does not include evidence of any such evaluation. Nevertheless, the ALJ 

found that one of Plaintiff’s severe impairments is fibromyalgia. 

Under either SSR 96-7 or SSR 16-3p, no symptom or combination of symptoms 

can be the basis for a finding of disability unless there are medical signs and laboratory 

findings demonstrating the existence of a medically determinable impairment that could 

reasonably be expected to produce the symptoms. Here, no medical signs or laboratory 

findings in the record demonstrate that Plaintiff has fibromyalgia. Plaintiff argues that 

because her “pain results from severe impairments well-established in the medical 

evidence,” the ALJ’s rejection of her pain testimony is inconsistent with his own decision 

and the evidence of record. Plaintiff’s other impairments may be well established in the 

medical evidence, but fibromyalgia is not. However, the ALJ’s apparent error in finding 

a severe impairment of fibromyalgia favors Plaintiff and is therefore deemed harmless. 

Under SSR 12-2p, if objective medical evidence does not substantiate a claimant’s 

statements about the intensity, persistence, and functionally limiting effects of 

fibromyalgia symptoms, the ALJ will consider all of the evidence in the case record, 

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including the claimant’s daily activities, medications or other treatments the claimant 

uses, or has used, to alleviate symptoms; the nature and the frequency of the claimant’s 

attempts to obtain medical treatment for symptoms; and statements by other people about 

the claimant’s symptoms. As discussed above, the objective medical evidence does not 

substantiate Plaintiff’s assertion that fibromyalgia symptoms interfere with her ability to 

work. 

Plaintiff has not actually made statements about the intensity, persistence, and 

functionally limiting effects of her fibromyalgia symptoms. She has not identified 

symptoms of fibromyalgia that interfere with her ability to work. She generally testified 

that she has pain, difficulty concentrating, and short-term memory problems. She also 

testified that since 2007 she has been taking opioid pain medications, which make her 

tired and adversely affect her memory and ability to concentrate. When asked whether 

she could tell if fibromyalgia affected her concentration, Plaintiff responded that she 

believed it was mainly the migraines that affect her concentration. She also testified that 

she has trouble sleeping at night, which causes her to be tired during the day. She said 

that sometimes her hands hurt or swell, possibly from fibromyalgia or perhaps from 

rheumatoid arthritis, which she believed to be in remission. 

The ALJ did not reject or discount any subjective symptom testimony or other 

evidence that Plaintiff’s fibromyalgia precludes or limits her ability to work because there 

is no such testimony or evidence in the record. Further, the ALJ did not err by failing to 

incorporate fibromyalgia into his residual functional capacity assessment because there is 

no evidence that Plaintiff’s fibromyalgia limited her ability to work. 

C. The ALJ’s Conclusion that Plaintiff Could Return to Her Past Work as 

a Hostess Is Supported by Substantial Evidence. 

At step four, the claimant has the burden of showing she can no longer perform 

her past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ 

may conclude the claimant can perform past relevant work by finding she is able to 

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perform the actual functional demands and duties of a particular past relevant job or she 

is able to perform the functional demands and duties of the occupation as generally 

required by employers throughout the national economy. Id. at 845. Thus, at step four, 

the claimant has the burden to prove she cannot perform her prior relevant work either as 

actually performed or as generally performed in the national economy. Carmickle v. 

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). 

“Past relevant work” is work that the claimant performed within the past 15 years, 

that was substantial gainful activity, and that lasted long enough for the claimant to learn 

to do it. 20 C.F.R. § 404.1560(b)(1). The ALJ may assess a claimant’s past relevant 

work as actually performed by considering a properly completed vocational expert’s 

report and/or the claimant’s own testimony. Pinto, 249 F.3d at 845. The Dictionary of 

Occupational Titles usually is the best source for how a job is generally performed. Id. 

In addition, a vocational expert may offer relevant evidence within his or her expertise or 

knowledge concerning the demands of a claimant’s past relevant work, either as actually 

or generally performed. 20 C.F.R. § 404.1560(b)(2). 

At the hearing, during which Plaintiff was accompanied by counsel, the ALJ 

questioned Plaintiff about her employment as a waitress, bartender, and a hostess. The 

ALJ said that based on her earnings, only the hostess work would be considered past 

relevant work. The ALJ questioned the vocational expert regarding the classification of 

the hostess position and posed hypothetical questions regarding the hostess position as 

past relevant work. Plaintiff’s counsel did not raise any objection to considering 

Plaintiff’s hostess work as past relevant work. Therefore, Plaintiff failed to preserve for 

appeal any objection to considering hostess work as past relevant work. See Meanel v. 

Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). 

Moreover, substantial evidence supports the ALJ’s findings that Plaintiff 

performed work as a hostess within the past 15 years, she performed it for a sufficient 

length of time to learn and provide average performance, and she performed it at the level 

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of substantial gainful activity. Plaintiff reported that she worked as a hostess 1994–1998, 

1997–2001, and 2005–2006. Plaintiff’s reported earnings for calendar year 1998 were 

$8,466.50, and the hearing was in March 2014. 

Plaintiff also contends the ALJ erred in finding Plaintiff can perform hostess work 

because it requires frequent reaching and would require working in an environment with 

excessive noise. The ALJ’s residual functional capacity assessment limits Plaintiff to 

occasional bilateral overhead reaching and directs that she should avoid concentrated 

exposure to noise. The ALJ included both of those limitations in the second hypothetical 

he posed to the vocational expert. The vocational expert classified hostess work as DOT 

310.137-010. Hostess work as defined by DOT 310.137-010 includes exposure to a 

moderate noise level and requires reaching frequently. DOT 310.137-010 does not 

explain whether or to what extent “reaching” includes overhead reaching. The vocational 

expert opined that an individual with the limitations included in the second hypothetical, 

i.e., occasional overhead reaching, would be able to perform hostess work and testified 

that her opinion was consistent with the DOT and her training, education, and experience 

in the field. The ALJ did not err in adopting the vocational expert’s opinion. 

IT IS THEREFORE ORDERED that the final decision of the Commissioner of 

Social Security is affirmed. The Clerk shall enter judgment accordingly and shall 

terminate this case. 

Dated this 22nd day of July, 2016. 

Neil V. Wake

Senior United States District 

Judge

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