Opinion
Civ. 3:19-cv-00445-CL
03-22-2021
ANNIE R., [1] Plaintiff, v. ANDREW M. SAUL, Acting Commissioner of Social Security Defendant.
FINDINGS AND RECOMMENDATION
Mark Clarke United States Magistrate Judge
Plaintiff Annie R. (“Plaintiff”) brings this action for judicial review of the Commissioner of Social Security's (“Commissioner”) decision denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). For the reasons below, the Commissioner's final decision should be reversed.
BACKGROUND
Born in 1957, Plaintiff was 58 years old on her disability application date of July 20, 2015. She has a high school education and previously worked as a parcel post clerk, production helper, and launder worker II. Tr. 43. Plaintiff alleges disability as of December 21, 2013 due to degenerative disc disease, a history of gouty arthritis, depression, and anxiety. Tr. 18, 668.
Plaintiff's claims were denied initially and upon reconsideration. Tr. 147, 152, 156-58, 161. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) and appeared for a hearing on November 3, 2017 before ALJ Vadim Mozrysky. Tr. 34. In a written decision dated January 29, 2018, the ALJ denied Plaintiff's applications. Tr. 12. The Appeals Council denied plaintiff's subsequent petition for review, rendering the ALJ's decision final. Tr. 1-3. This appeal followed.
STANDARD OF REVIEW
A reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, a court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.920(a)(4), 416.920(a)(4) (2012). The burden of proof rests upon the claimant at steps one through four, and with the Commissioner at step five. Id.; Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner must demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. §§ 404.920(a)(4)(v), 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. If, however, the Commissioner proves that the claimant can perform other work existing in significant numbers in the national economy, the claimant is not disabled. Id.; see also Bustamante, 262 F.3d at 953-54.
The ALJ performed the sequential evaluation. At step one, the ALJ found that Plaintiff had not performed substantial gainful activity since her alleged onset date. Tr. 17. At step two, the ALJ found Plaintiff had the severe impairments of degenerative disc disease and a history of gouty arthritis. Tr. 18 At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the listings. Tr. 20; 20 C.F.R. Part 404, Subpart P, Appendix 1.
Prior to step four, the ALJ determined that Plaintiff's RFC allowed her to perform light work with the following limitations: Plaintiff can lift and/or carry no more than 20 pounds occasionally and 10 pounds frequently; her capacity to do push and pull activities are limited to the weights listed above for lift and/or carry; she can sit for 6 hours in an 8-hour workday; she can occasionally climb stairs, ramps, ropes, ladders, and scaffolds; she can perform frequent balancing and stooping; she can perform occasional kneeling, crouching, and crawling; she can perform frequent bilateral overhead reaching; and she must avoid moderate exposure to hazards such as working at unprotected heights or around machinery with moving parts or vibrations or motor vehicles. Tr. 21.
At step four, the ALJ found that Plaintiff was unable to perform any of her relevant work. Tr. 24. At step five, the ALJ found that based on Plaintiff's age, education, and RFC, she could perform jobs that exist in significant numbers in the national economy, including merchandise distributor. Tr. 24-25. The ALJ therefore concluded that Plaintiff was not disabled. Tr. 25.
Plaintiff contends the ALJ erred by (I) failing to properly evaluate the medical evidence; (II) making improper findings at step two; and (III) improperly finding transferability of job skills at step five.
I. Medical Opinion Evidence
Plaintiff first argues that the ALJ improperly evaluated the medical evidence because he (1) rejected the opinion of examining physician Raymond Nolan, M.D., Ph.D.; and (2) gave significant weight to the non-examining consultative physicians' opinions. “There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). “Where a treating or examining physician's opinion is contradicted by another doctor, the ‘[ALJ] must determine credibility and resolve the conflict.'” Id. (citation omitted). “An ALJ may only reject a treating physician's contradicted opinions by providing ‘specific and legitimate reasons that are supported by substantial evidence.'” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
“An ALJ can satisfy the ‘substantial evidence' requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient: “The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Id. “[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
1. Reviewing Psychologists Ben Kessler, Psy.D., and Robert Henry, Ph.D.
Plaintiff contends that the ALJ improperly evaluated the opinions of State Agency physicians Ben Kessler, Psy.D., and Robert Henry, Ph.D. Both Dr. Kessler and Dr. Henry addressed Plaintiff's depression and anxiety, indicating that Plaintiff had no limitations in following short and simple instructions or in performing other workplace functions such as making decisions and getting along with peers. Tr. 84-85. They also opined that Plaintiff was limited to understanding and remembering short one- to two-step instructions.
The ALJ rejected Dr. Henry's and Dr. Kessler's opinions. First the ALJ noted that their limitations regarding understanding and remembering was contradicted by other evidence in the record. Tr. 19, 23. The ALJ may consider the consistency of any medical opinion with the record as a whole. Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Further, a non-examining physician's opinion counts as substantial evidence only when “supported by other evidence in the record.” Andres v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Here, Plaintiff testified that she performed various multi-step tasks as a home caregiver for two people and cared for her grandchildren. Tr. 36-37. The ALJ may reject a physician's opinion that conflicts with a claimant's activity level. Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). It was reasonable for the ALJ to infer from this evidence that Dr. Henry's and Dr. Kessler's limitation on understanding and remembering was inconsistent with the record as a whole. The ALJ provided a legally sufficient reason for rejecting the Agency physician opinions. Batson, 359 F.3d at 1193; Ford, 950 F.3d at 1154-55.
2. Examining Physician Brigitte Engelhardt, M.D.
Plaintiff also argues that the ALJ gave improper weight to the opinion of examining physician Brigitte Engelhardt, M.D. Dr. Engelhardt evaluated Plaintiff in October 2015. Tr. 727-33. Dr. Engelhardt listed Plaintiff's chief complaints as neck, back, foot, and hip pain, hypertension, and a history of concussion. Tr. 727. Dr. Engelhardt noted Plaintiff had cervical strain due to whiplash, lumbar strain with possible underlying degenerative disc disease, foot pain with uncertain etiology, trochanteric bursitis, hypertension, and visual disturbance with uncertain etiology. Dr. Engelhardt assessed overhead and forward reaching restrictions, but listed no additional examination findings or other limitations.
The ALJ rejected Dr. Engelhardt's opinion, noting that she “essentially list[ed]” Plaintiff's anecdotal reports of injury and pain. Tr. 23-24. The ALJ may reject a physician's opinion that is based on a claimant's self-reports where the ALJ properly found the claimant's testimony to be unreliable. Tonapetyan v. Halter, 242 F.3d 1141, 1149 (9th Cir. 2001). Here, the ALJ rejected Plaintiff's subjective symptom testimony, and Plaintiff does not challenge this finding. On this record, the ALJ provided a legally sufficient reason for rejecting the opinion of Dr. Engelhardt.
II. Step Two Findings
Plaintiff next argues that the ALJ erred by omitting her depression and anxiety from the list of severe impairments at step two. The claimant bears the burden of proof at step two. Barnhart v. Thomas, 540 U.S. 20, 24 (2003). If an ALJ resolves step two in the claimant's favor, any omission is harmless if the ALJ properly incorporates all of a claimant's limitations into the RFC.
The ALJ resolved step two in Plaintiff's favor. He found Plaintiff's alleged mental impairments to be nonsevere based on her current work activity, testimony, and reports to examiners. Tr. 19. As discussed above, the ALJ properly rejected the State Agency physician opinions that Plaintiff had limitations related to anxiety and depression. Further, Plaintiff testified that she stopped working due to back pain and walking limitations following a car accident, and that she could not work full time in 2015 because she was caring for her granddaughter. Tr. 37-38. She did not testify to any mental impairment symptoms or limitations. Tr. 35-45. On this record, the ALJ reasonably concluded that Plaintiff's alleged mental health limitations did not interfere with her understanding, remembering, carrying out simple instructions, and judgment. Plaintiff therefore did not meet her burden to show her anxiety and depression were “severe” under the Agency's standards. 20 C.F.R. 404.1521(b)(3)-(4), 416.921(b)(3)-(4).
III. Transferability of Skills at Step Five
Plaintiff argues, finally, that the ALJ erred at step five because he failed to follow Medical-Vocational Guidelines Rule 202.00(c). That Rule provides that when an individual is of advanced age and has both exertional and nonexertional limitations, the ALJ must identify a significant range of work the claimant can perform in order to find the claimant not disabled. Specifically, Rule 202.00(c) states that “for individuals of advanced age who can no longer perform vocationally relevant past work” and “who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work … the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.”
202.00(c) states in full:
Here, the ALJ failed to comply with Rule 202.00(c). Plaintiff was 56 years old and defined as an individual of advanced age as of her alleged disability onset date. Tr. 24. At step four, the ALJ determined that Plaintiff could no longer perform her past relevant work. At step five, the ALJ found, based on VE testimony, that Plaintiff had acquired skills from her past work as a postal clerk. Tr. 24. At the administrative hearing, the VE testified that Plaintiff's skills would be transferable to the job of merchandise sorter. Tr. 43. A vocational expert's testimony constitutes substantial evidence on which the ALJ is entitled to rely. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Relying on this testimony, the ALJ found that Plaintiff could perform the job of merchandise sorter. The ALJ therefore concluded that Plaintiff was not disabled.
It is this final inference by the ALJ that is not justified under Rule 202.00(c). The Ninth Circuit interprets “a significant range of … work” such that the ALJ must identify more than one representative occupation to satisfy the Medical-Vocational Rule's requirement. Lounsburry v. Barnhart, 468 F.3d 1111, 1117 (9th Cir. 2006). Here, the ALJ only identified one occupation that Plaintiff could perform given her age, skills, and limitations, a finding of disabled was warranted.
The ALJ therefore erred in concluding that Plaintiff was not disabled. For these reasons, this case should be reversed and remanded for the payment of benefits.
RECOMMENDATION
For the reasons stated above, the Commissioner's final decision should be REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled. Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education.