Opinion
CV-20-0321-TUC-JGZ(JR)
02-15-2022
Pilar Gallardo, Plaintiff, v. Kilo Kijakazi, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Plaintiff Pilar Gallardo brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying her claims for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act) and Supplemental Security Insurance Benefits (SSI) under Title XVI of the Act. Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, affirm the Commissioner's final decision.
I. Factual and Procedural History
A. Administrative History
On May 10, 2016, Plaintiff applied for DIB and SSI alleging she had been unable to work since January 13, 2016. (Administrative Record (AR) 412-28.) The Social Security Administration denied Plaintiff's application initially and upon reconsideration. (AR 196-210.) Plaintiff requested a hearing (AR 211-14), and four hearings were held in the case before the Administrative Law Judge (ALJ) Larry E. Johnson between July 31, 2018, and July 11, 2019, during which testimony was taken from Plaintiff and three witnesses called by the ALJ: psychologist Kent Layton, Psy.D.; neurologist William Rack, M.D.; and vocational expert (VE) Freemen Leeth, Jr. (AR 41-121 (hearing transcripts).)
In a Decision issued on August 1, 2019, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (AR 13-28.) Plaintiff requested Appeals Council review and on June 24, 2020, the ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review of the ALJ's Decision. (AR 2.) This appeal followed.
B. Plaintiff's Background
Plaintiff was born in March 1974. (AR 412.) She graduated high school in 1991 and earned an associate of arts degree in general studies from Pima Community College in 1993. (AR 658.) The VE described Plaintiff's past relevant work as teacher aide and companion, both of which are at the light exertional level. (AR 92, 115.) During her hearings, Plaintiff testified at some length about the history, treatment and symptoms of her seizure disorder. (AR 92-105, 112-114.)
C. The ALJ's Application of the Five-Step Evaluation Process
To be found disabled and qualified for DIB or SSI, a claimant must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The same five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). The five-step process requires the claimant to show (1) he has not worked since the alleged disability onset date, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity (“RFC”) precludes him from doing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies his burden though step four, the burden shifts to the Commissioner to show at step five that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995); Bowen, 482 U.S. at 146 n. 5 (describing shifting burden at step five).
In this case, at step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of January 13, 2016. (AR 16.) At step two, the ALJ found that Plaintiff had the following severe impairments: epilepsy, obesity, bipolar disorder, anxiety disorder, and unspecified neurocognitive disorder. (AR 16-17.) At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1. (AR 17-19.) Between steps three and four, the ALJ conducted an RFC assessment, and concluded that Plaintiff:
“Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). A plaintiff's residual functional capacity is what she can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989).
has the residual functional capacity to perform a range of light work, that is occasionally lift and carry 20 pounds, occasionally 10 pounds. Stand and walk is limited to a total of 4 out of 8 hours. Sit is 6 hours total out of 8 hours. Push and pull is the same limitation as lift and carry. Postural limitations are as follows: ladders, ropes, and scaffolding never, climbing ramps and stairs occasional, balance frequently, stooping frequently, kneeling, crouch, and crawling occasional. There are no manipulative, visual, or communication limitations. Extremes of heat or cold, no limits, wetness, humidity, noise, vibration, dust fumes, odors, are not limits. The [Plaintiff] should never operate a motor vehicle, she should have no exposure to blinking or flashing lights, no exposure to fluorescent lighting, no work involving the safely of others, no exposure to extreme heat, no fast-paced work. She should avoid concentrated exposure to hazards such as machinery and unprotected heights. The [Plaintiff] has the mental capacity to perform work where public,
interpersonal contact is only incidental to the work performed, i.e., that the [Plaintiff] is not required to frequently consult with or involve the general-public, with such brief, infrequent, and superficial and not a primary component of the job. Performed tasks can be no more complex than those considered as unskilled with instructions limited to one-to three-step instructions typical of unskilled work, requiring judgment commensurate with unskilled work and involving infrequent changes.(AR 19-20.) After determining Plaintiff's RFC, the ALJ found at step four that Plaintiff could not perform her past relevant work. (AR 26.) At step five, relying on testimony from the VE, the ALJ concluded that Plaintiff could perform the requirements of an electronics worker, inspector, or assembler, and was therefore not disabled. (AR 26-27.)
II. Standard of Review
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Substantial evidence is more than a mere scintilla, but less than a preponderance, Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted), and is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
III. Plaintiff's Claims
In her Opening Brief, Plaintiff presents four issues for review. Plaintiff's Opening Brief Filed Pursuant to LRCiv 16.1 (“Opening Brief”) (Doc. 20), pp. 9-23. She contends that the ALJ erred by: (1) not addressing the opinion of Jeffrey W. Zabel, Ph.D., regarding Plaintiff's need for a job coach in evaluating whether other work existed at step five of the sequential disability evaluation process; (2) giving “significant weight” to the opinion of Kent Layton, Psy.D., whom the ALJ called as a “medical expert” because Dr. Layton did not consider the lay witness statements that were in evidence; (3) by discounting the lay witness statements on the ground that the lay witnesses were not “medical professionals;” and (4) evaluating Plaintiff's testimony by mischaracterizing her activities as being in contradiction to her doctor's advice and as being more substantial than they actually are. Opening Brief, pp. 13-25. Based on the cited error, Plaintiff requests that the ALJ's Decision be reversed and she be awarded benefits under the Act. Id., pp. 25-26.
IV. Discussion
A. Dr. Zabel
On February 7, 2015, Plaintiff was seen by Jeffrey W. Zabel, Ph.D., for a one-time psychoeducational evaluation to be used in planning her vocational rehabilitation services through the State of Arizona. (AR 2103-11; 657-65.) Plaintiff told Dr. Zabel that she had worked successfully as a teacher assistant for 10 years with one teacher but had difficulties working with other teachers. (AR 2104-05.) Her vocational goal was to obtain a degree in social work. (AR 2105.) Dr. Zabel observed largely normal behavior, including clear and coherent speech, good eye contact, a sense of humor, willingness to provide information, and ability to maintain focus, and no difficulties following directions. (AR 2103.) He noted that, on the Block Design Test of the WAIS-IV, Plaintiff used the least efficient approach to problem solving. (AR 2103-04.) Plaintiff reported her three biggest problems were her health, issues at work, and finances. (AR 2104.)
Dr. Zabel administered psychological tests which showed that Plaintiff had an FSIQ of 70, was “borderline” in verbal comprehension, perceptual reasoning, and processing speed. (AR 2106). Her ability to attend to verbally presented information, process information in memory, and then to formulate a response was in the extremely low range. (AR 2106.) Dr. Zabel reported the testing showed that Plaintiff “may have difficulty keeping up with others in a wide variety of situations that require thinking and reasoning abilities.” (AR 2110.) He recommended that in any employment she have a job coach until she has mastered the work requirements and “developed a comfort level with her supervisors and fellow employees.” (AR 2110.) He recommended a neuropsychological evaluation to improve the diagnosis and the understanding of Plaintiff's strengths and weaknesses and gave her a provisional diagnosis of “unspecified Neurocognitive Disorder.” (AR 2110-11.)
As Plaintiff notes, at step two, the ALJ found that her “severe impairments” included an “unspecified neurocognitive disorder.” (AR 16.) Nevertheless, she complains that the ALJ's RFC assessment as presented to the VE made not mention of Dr. Zabel's recommendation that Plaintiff have a job coach. Plaintiff contends that Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), and Merrill-Russell v. Comm'r of Soc. Sec. Admin., 411 F.Supp.3d 503, 508-09 (D. Ariz. 2019), require that the ALJ consider Dr. Zabel's opinions and that it is reversible error that he failed to do so.
Here, however, the Commissioner effectively rebuts Plaintiff's contentions as they relate to Dr. Zabel. The ALJ did consider and comment on Dr. Zabel's one-time evaluation, albeit without identifying the doctor by name. Citing to the exhibit containing Dr. Zabel's evaluation and opinion (4F, pp. 3-14 (corresponding to AR 657-67)), the ALJ noted that Plaintiff had undergone a “psychoeducational evaluation in 2015, prior to the alleged onset of disability, [and Plaintiff] complained of memory difficulties and was assessed with a provisional diagnosis of an unspecified neurocognitive disorder” and that Plaintiff “was working as a teachers' aide at this time.” (AR 24.) It is certainly relevant that the ALJ noted that the record was associated with an evaluation that occurred prior to Plaintiff's alleged onset date, as medical opinions that predate the alleged onset date are of limited relevance. See Carmickle v. Commissioner, 533 F.3d 1155 (9th Cir. 2008); see also Baker v. Berryhill, 720 Fed.Appx. 352, 355 (9th Cir. 2017) (finding harmless error in an ALJ's failure to consider evidence that predated an alleged onset date). Additionally, the ALJ cited the testimony of Dr. Layton and the opinions of state agency consultants that were not as limited as that of Dr. Zabel. Those opinions came after Plaintiff's alleged onset date and, assuming the limitations described by Dr. Zabel were accurate when offered, showed subsequent improvement and supported the ALJ's ultimate RFC determination. See Williams v. Astrue, 493 Fed.Appx. 866, 869 (9th Cir. 2012) (finding harmless error in an ALJ's failure to consider evidence predating an alleged onset date where more recent evidence qualified as substantial evidence supporting the ALJ's findings). Accordingly, even if the ALJ erred in assessing Dr. Zabel's opinion, because the opinion predated the alleged onset date and the ALJ supported the decision with other evidence of record, any error was harmless.
B. Dr. Layton
Dr. Layton testified by telephone at Plaintiff's hearing. He opined that Plaintiff's impairments did not meet or medically equal the paragraph B criteria of listings 12.02, 12.04, and 12. 06. See C.F.R. pt. 404, Subpt. P. App. 1 § 12.00. Plaintiff contends that Dr. Layton did not consider Plaintiff's testimony and the lay witness statement in reaching his opinions. However, in making this argument, the Plaintiff has conflated the proper roles of the medical expert and the ALJ. Plaintiff first contends that 20 C.F.R. § 404.1513(a)(4) requires medical experts to evaluate evidence from nonmedical sources in reaching their opinions. However, the regulation states that the Social Security Administration will evaluate the nonmedical evidence. See 20 C.F.R. § 404.1513(a) (explaining “[w]hat we mean by evidence” and the “[w]e evaluate evidence we receive according to the rules pertaining to the relevant category of evidence.”). Under the rule, it is the Administration, through its agents, which evaluates the evidence, whether it be medical or nonmedical. Contrary to Plaintiff's contentions, nowhere in the cited regulations does the Court find a requirement that a medical expert consider lay witness testimony in reaching her or his opinion.
Plaintiff's own argument further illustrates that it is the SSA, and not the medical experts, which is obligated to consider lay witness testimony. In her Opening Brief, Plaintiff offers the following:
Lay witness evidence is repeatedly mentioned in the regulations setting out the guidelines for determining whether a claimant meet or equals the Listing of Impairments for a mental impairment. 20 C.F.R. § 404.1520a(c)(2) describes how to rate claimant's functional limitations. That subsection references 12.00C through 12.00H for information about the factors SSA considers in rating the degree of functional limitation for determining when a claimant has a mental impairment. Information from family members or people who know the claimant are all mentioned as evidence to be considered. See 12.00C3, 12.00C5b, 12.00D1a, and 12.0F3a & c. These citations show the lay witness statements are an essential factor to consider in deciding whether a claimant meets or equals the Listing of Impairments.Opening Brief, p. 16. While the Plaintiff is accurate in her argument insofar as stating that the statements from family members may be relevant to the determination of whether a claimant meets or equals a listing, there is nothing in either her argument or the regulations that require a medical expert to evaluate lay witness statements.
Similarly, the Commissioner's Hearings, Appeals, and Litigation Manual (HALLEX) I-2-6-70, to which Plaintiff also cites, requires only that the ALJ verify that the medical expert has examined “all medical and other relevant evidence of record.” HALLEX I-2-6-70(B). While the ALJ or the expert might find lay witness testimony relevant, nothing in the HALLEX requires that it be examined if determined irrelevant. Plaintiff also represents that the ALJ is obligated to summarize any pertinent testimony that the expert was not present to hear. Obviously, if not found to be pertinent, it need not be summarized and the HALLEX offers an example of the sort of testimony that might be pertinent: “testimony regarding the claimant's current medications or sources and types of treatment.” Id. Here, Plaintiff does not contend that Dr. Layton was unaware of the Plaintiff's then current medications or treatment. As such, there is no basis in the regulations or HALLEX for finding error in the ALJ's evaluation of Dr. Layton's testimony.
Plaintiff's citations to the HALLEX manual imply that the manual is binding on the ALJ and on this Court. However, as the Ninth Circuit has concluded, the HALLEX manual is not binding on the Commissioner, but is simply an “internal guidance tool, providing policy and procedural guidelines to ALJs and other staff members.” Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000). Consequently, the HALLEX manual “does not prescribe substantive rules and therefore does not carry the force and effect of law.” Id.
C. Evaluation of Plaintiff's Testimony
Plaintiff argues the ALJ improperly rejected Plaintiff's testimony by mischaracterizing her activities as being inconsistent with her doctor's advice and as being more substantial than they were. An ALJ performs a two-step analysis to evaluate a claimant's testimony. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citations omitted). First, the ALJ must evaluate the objective medical evidence of the underlying impairment which could be reasonably expected to cause the alleged symptoms or pain, and second, if there is no evidence of malingering, the ALJ can reject the claimant's testimony as to the symptoms' severity by offering specific, clear and convincing reasons. Id. at 1015 (citations omitted). The ALJ may consider a claimant's activities of daily living in determining whether those activities contradict her testimony about her symptoms or functional limitations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2017); see also Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (when assessing credibility, the ALJ “may consider, among other factors, . . . ‘the claimant's daily activities.'”) (internal citation omitted). The ALJ may not, however, discount testimony “solely because” the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
In the Decision, the ALJ determined that Plaintiff's testimony was not fully supported by her activities of daily living. (AR 20-21.) Specifically, the ALJ stated: “Also noteworthy is the claimant's own assessment of her seizure disorder in that she continues to drive. Her driving is consistently reported by her treating neurologist despite his safety discussions.” (AR 21.) Plaintiff notes that she had not had a seizure since April 2017 and, therefore, the ALJ's conclusion was based on the faulty assumption that Plaintiff was legally prohibited from driving. While Plaintiff's interpretation of the record is plausible, so too is the ALJ's. The ALJ noted that her last seizure was in April 2017. (AR 20-21.) He also noted that her doctor on several occasions informed her of the safety considerations related to her continued driving. (AR 4346, 4348.) At least one of these notations appears in a record indicating she is presenting for “seizure follow up, ” but continues to drive. (AR 4381.) The ALJ interpreted these notes as indicating Plaintiff's own assessment of her epilepsy was that it was not serious enough to discontinue driving. The Court is required to defer to an ALJ's rational interpretation of the evidence in the context of credibility determinations. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (“We must uphold the ALJ's decision where the evidence [related to credibility determinations] is susceptible to more than one rational interpretation”). The ALJ's interpretation of the record was rational and constituted a clear and convincing basis for concluding Plaintiff's “allegations of the severity and frequency of her symptoms and side effects less persuasive.” (AR 23.)
Plaintiff next contends that the ALJ improperly penalized her for attending spiritual group meetings and leading bible study. Plaintiff contends that she attended monthly spiritual groups with the encouragement of her mental health providers and was a guest speaker only once. Opening Brief, p. 25. Again, it was rational for the ALJ to conclude that this evidence, and other evidence related to Plaintiff's activities and identified in the Decision, showed that Plaintiff's memory loss and fatigue allegations were not consistent with her activities of daily living. Even “where claimant's activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.” Wennet v. Saul, 777 Fed.Appx. 875, 877 (9th Cir. 2019) (internal quotation marks and citation omitted). Under the circumstances of this case, it is not the Court's role to review the record de novo. As stated above, if the ALJ's interpretation of the record is rational, the resulting decision must be upheld. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.”), superseded by regulation on other grounds as stated in Thomas v. Saul, 830 Fed.Appx. 196, 198 (9th Cir. 2020).
D. Evaluation of Lay Witness Statements
In determining disability, “‘an ALJ must consider lay witness testimony concerning a claimant's ability to work.'” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). The ALJ must “give reasons germane to each witness” before he can reject lay witness evidence. Molina, 674 F.3d at 1111 (internal citations and quotation marks omitted). “Further, the reasons ‘germane to each witness' must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1054). Nor may an ALJ reject the testimony as generally unsupported by the medical record. See Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011).
Here, the ALJ said that he considered the statements of Plaintiff's family and friends and gave them “some weight, as they have observed the claimant longitudinally and can attest to her functioning, from their perspective.” (AR 25.) The ALJ went on to conclude, however, that “they are not medical professionals. Thus, such observations are of limited value.” (Id.) In Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005), the Ninth Circuit stated that “[i]nconsistency with medical evidence is one such [germane] reason. Id. at 1218. But in that case, the court noted that the ALJ explained the basis for accepting some lay witness testimony which was consistent with the medical record while rejecting other lay witness testimony found inconsistent. Id. That was not done here. The ALJ's rejection of the lay witness testimony was conclusory and not sufficiently supported. Nevertheless, Plaintiff does not explain why the error was harmful considering the ALJ's evaluation of Plaintiff's own testimony. As the Commissioner contends, “[b]ecause the ALJ properly discounted Plaintiff's subjective statements concerning memory loss, fatigue and confusion (AR 21-25), it was reasonable for the ALJ to reject similar statements coming from friends and family as well.” Answering Brief, p. 15. “Where lay witness testimony does not describe any limitations not already described by the claimant, and the ALJ's well-supported reasons for rejecting the claimant's testimony apply equally well to the lay witness testimony, it would be inconsistent with our prior harmless error precedent to deem the ALJ's failure to discuss the lay witness testimony to be prejudicial per se.” Molina, 674 F.3d at 1117 (citing Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that if an ALJ gave germane reasons for rejecting the claimant's testimony, those reasons are equally germane to similar testimony by a lay witness.); and Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Here, Plaintiff does not argue that the statements of her friends and family describe symptoms or limitations beyond those Plaintiff herself described. Because the ALJ reasonably rejected Plaintiff's testimony, that reasoning applies with equal force to the lay witness statements. As such, the ALJ did not harmfully err in rejecting the lay witness statements. See Molina, 674 F.3d at 1122.
V. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, affirm the Commissioner's Decision.
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.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 20-0321-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).