Opinion
6:20-cv-01867-HZ
04-27-2022
MICHAEL EUGENE D, [1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Kevin Kerr, Kerr Robichaux & Carroll Attorney for Plaintiff. Renata Gowie, Frederick D. Fripps Attorneys for Defendant.
Kevin Kerr, Kerr Robichaux & Carroll Attorney for Plaintiff.
Renata Gowie, Frederick D. Fripps Attorneys for Defendant.
OPINION & ORDER
MARCO A. HERNANDEZ United States District Judge.
Plaintiff Michael Eugene D brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court affirms the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on March 29, 2018, alleging an onset date of January 1, 2017. Tr. 190, 195. His application was denied initially and on reconsideration. Tr. 15.
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 12.
On October 17, 2019, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge (“ALJ”). Tr. 30-52. At the hearing, Plaintiff modified his alleged onset date to March 29, 2018. Tr. 33. On November 4, 2019, the ALJ found Plaintiff not disabled. Tr. 15-25. The Appeals Council denied review. Tr. 1-3.
FACTUAL BACKGROUND
Plaintiff alleges disability based on intermittent explosive disorder, attention deficit hyperactivity disorder (ADHD), and posttraumatic stress disorder. Tr. 172, 18. At the time of his alleged onset date, he was 52 years old. Tr. 217. He has a limited education, and his past relevant work is recycler (salvage) and construction worker. Tr. 24.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140 -41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite impairments, has the residual functional capacity (RFC) to perform their “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141 -42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date. Tr. 17. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “intermittent explosive disorder, ” attention deficit hyperactivity disorder, ” and “posttraumatic stress disorder.” Tr. 18. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 18. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to “perform a full range of work at all exertional levels” with the following limitations: “the claimant can understand, remember, and carry out simple, routine, repetitive tasks, with no contact with the general public, and no more than occasional coworker contact but no tasks requiring close proximity to coworkers.” Tr. 20 Because of these limitations, the ALJ concluded that Plaintiff could not perform his past relevant work. Tr. 24. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “street cleaner.” Tr. 24-25. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 25.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). The court considers the entire record, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's”) (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by (1) improperly rejecting the consultive examiner's opinion and (2) making unsupported step five findings.
New regulations about weighing medical opinion evidence apply to claims filed on or after March 27, 2017. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to give deference to any medical opinion, including treating source opinions. Id. Instead, the agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
Under this framework, the ALJ is required to explain how supportability and consistency were considered and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same, ” the ALJ is required to explain to how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).
On September 29, 2018, Dr. Raymond Nolan performed a physical consultative evaluation of Plaintiff. Tr. 331 -33. In his comprehensive musculoskeletal examination, Dr. Nolan evaluated Plaintiff's range of motion and his feeling in his extremities, as well as his muscle strength and reflexes. Tr. 331-32. Dr. Nolan noted that Plaintiff complained of right hip pain. Tr. 331-32. Although Dr. Nolan, “based on objective findings place[d] no restrictions on duration of sitting, standing” and “no restrictions in terms of bending, twisting, turning, lifting, or carrying, ” he recommended limiting walking to “no more than four hours in an eight hour day” and also recommended that “[r]epetitive peddling activity involving right lower extremity should be limited to occasional basis.” Tr. 331-32.
In her decision, the ALJ wrote that although she was “particularly struck by Dr. [Nolan]'s observations of [Plaintiff's] mental and social presentation, his opinion of the claimant's physical functioning [was] not persuasive.” Tr. 23. The ALJ explained that Dr. Nolan's report “fail[ed] to support the opined limitations in use of the right lower extremity and restriction in walking.” Tr. 23. On the contrary, the ALJ continued, “Dr. [Nolan] observed the claimant's gait was normal and [Plaintiff] was able to go from sitting to standing without difficulty.” Tr. 23. The ALJ emphasized several more of Dr. Nolan's observations, including his observation that “[Plaintiff] was able to walk on his toes and heels” and that Plaintiff's “[b]ilateral upper and lower extremity muscle strength was 5/5 throughout.” Tr. 23. Additionally, the ALJ found that Dr. Nolan's “diagnosis of chronic hip pain [was] inconsistent with later negative x-ray results.” Tr. 23. Overall, the ALJ determined that Dr. Nolan's “clinical findings [did] not support the opined limitations.” Tr. 23.
Here, the ALJ adequately explained why she discounted Dr. Nolan's opinion on Plaintiff's limitations. She first evaluated supportability, explaining that Dr. Nolan's proposed limitations were not supported by his own observations. Dr Nolan's report stated that Plaintiff exhibited normal range-of-motion and normal strength across the board, and these normal scores do not support the Dr. Nolan's proposed limitations-as the ALJ concluded. Turning to the second important factor, consistency, the ALJ explained that Dr. Nolan's “diagnosis of chronic hip pain [was] inconsistent with later negative x-ray results.” Tr. 23. Additionally, the ALJ explained that Dr. Nolan's observations regarding Plaintiff's gait and ability to maneuver were inconsistent with Dr. Nolan's proposed limitations, i.e., the limitations were too restrictive for someone with such nominal results. Thus, the ALJ “explain[ed] how it considered the supportability and consistency factors” in evaluating Dr. Nolan's opinion. Woods v. Kijakazi, __ F.4th __, No. 21-35458, at *15 (9th Cir. 2022). On the whole, the ALJ's decision reveals that, in discounting Dr. Nolan's proposed limitations, she considered the appropriate factors and adequately explained her reasoning. See id.
Turning to Plaintiff's second argument-that the ALJ's step five findings were not supported by substantial evidence-the Court concludes that the ALJ's step five findings are supported by such evidence that a “reasonable mind might accept as adequate to support a conclusion.” Vasquez, 572 F.3d at 591. Plaintiff seems to argue that the ALJ was limited to applying certain grid rules (found at 20 C.F.R. § 404, Subpt. P, App. 2) because Plaintiff was “functionally limited to a range of light work.” Pl. Br. 8-11. And those grid rules, Plaintiff argues, require finding Plaintiff disabled given his supposed functional limitations. But Plaintiff's argument fails because the ALJ did not rely on any grid rules to find that the Commissioner proved Plaintiff could engage in substantial gainful work that exists in the national economy. Instead, the ALJ relied on the Vocational Expert's testimony-one of “two ways for the Commissioner to meet his Step Five burden.” Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Specifically, the ALJ asked the VE what work an individual with Plaintiff's limitations-"no contact with general public, ” “no tasks requiring close proximity to customers, ” and the ability to “understand, remember and carry out simple, routine, repetitive tasks”-could perform. Tr. 48-50. After clarifying that there were “no exertional limitations, ” the VE responded that there are approximately 43, 000 “Street Cleaner” jobs that Plaintiff could perform. Tr. 49. Most importantly, “the hypothetical that the ALJ posed to the VE contained all of the limitations that the ALJ found credible and supported by substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). So, as the Ninth Circuit explained in Bayliss, “[t]he ALJ's reliance on testimony the VE gave in response to the hypothetical therefore was proper.” Substantial evidence supports the ALJ's step five finding.
CONCLUSION
Based on the foregoing, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.