Opinion
CV-21-01840-PHX-MTL
10-27-2022
Mia Glenn, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Michael T. Liburdi, United States District Judge.
Plaintiff Mia Glenn challenges the denial of her Application for Child's Insurance Benefits and Supplemental Security Income under the Social Security Act (the “Act”) by Defendant, the Commissioner of the Social Security Administration (“Defendant”). Plaintiff filed a Complaint with this Court seeking judicial review of this denial. (Doc. 1.) The Court now addresses Plaintiff's Opening Brief (Doc. 13), Defendant's Response Brief (Doc. 16), and Plaintiff's Reply (Doc. 17). The Court has reviewed the briefs and the Administrative Record. (Doc. 12, AR.) The Court, in part, reverses the Administrative Law Judge's (“ALJ”) decision and remands for further proceedings consistent with this opinion.
I. BACKGROUND
In mid-2018, Plaintiff filed applications for disability for Child's Insurance Benefits and Supplemental Security Income alleging disability beginning November 1, 2014. (AR 13.) Plaintiff's claims were denied on May 3, 2019, and upon reconsideration on October 1, 2019. (Id.) Plaintiff subsequently requested a hearing. (Id.) After a hearing, the ALJ issued a written decision denying Plaintiff's claims on March 10, 2021. (AR. 13, 26.) On September 22, 2021, the Social Security Appeals Council found that Plaintiff's stated reasons for review did not provide a basis for changing the ALJ's decision denying disability. (AR. 1.) Plaintiff timely sought judicial review. (Doc. 1.)
This Court has reviewed the medical evidence in its entirety. The pertinent medical evidence will be discussed addressing the issues raised by the parties. The ALJ evaluated Plaintiff's disability from January 28, 2015, through the date of decision. (AR. 13.) The ALJ found Plaintiff to have the following severe impairments: depression, anxiety, post-traumatic stress disorder, Chiari malformation, migraine, bilateral sensorineural hearing loss with hearing aid, and positional orthostatic tachycardia syndrome. (AR. 16.) Despite this finding, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. (AR. 26.) The ALJ primarily based this decision on findings that (1) Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (2) Plaintiff has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b); and (3) based on the RFC and other relevant factors that there is a significant number of jobs in the national economy that Plaintiff can perform.
II. LEGAL STANDARD
In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The 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 relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine whether substantial evidence supports a decision, the Court must consider the entire record. Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, (9th Cir. 2002) (citations omitted).
To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proof at 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 presently engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 416.920(a)(4)(ii). 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. Part 404. 20 C.F.R. § 416.920(a)(4)(iii). If so, the claimant is disabled. Id. If not, the analysis proceeds to step four, where the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant can do his past relevant work, he is not disabled. Id. If not, the analysis proceeds to the fifth and final step, where the ALJ determines if the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). If not, the claimant is disabled. Id.
III. ANALYSIS
Plaintiff raises two issues regarding the ALJ's finding that she is not disabled. First, Plaintiff argues that the ALJ failed to properly assess her migraines pursuant to Social Security Ruling 19-4p (“SSR 19-4p”) and Listing 11.02B for epilepsy. (Doc. 13 at 10, 14.) Second, Plaintiff claims the ALJ's determination of her RFC was not based on substantial evidence. (Id.) These issues are addressed in turn.
A. Step Three Analysis
As mentioned, 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. Part 404. Listing 11.02B requires a claimant to suffer from “dyscognitive seizures occurring at least once a week for at least three consecutive months.” despite adherence to treatment. Certain severe headache disorders may satisfy a listing, even though there is not a separate listing for headache disorders. See SSR-19-4p (“While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures)”). As such, the ALJ may find that a claimant's severe headaches meet or equals the listing for epilepsy. Id.
An ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination unless the claimant presents evidence to establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). The claimant bears the burden of proving she has an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the Commissioner's regulations. Id. An ALJ does not have an obligation to discuss medical equivalency sua sponte. See Ford v. Saul, 950 F.3d 1141, 1157 (9th Cir. 2020).
In this case, Plaintiff makes no clear attempt at the administrative level to demonstrate her migraines met or equaled Listing 11.02B. Although Plaintiff's counsel made passing references to “seizure-like” episodes related to symptoms of Plaintiff's Chiari malformation at the administrative hearing (AR 37-38), this alone does not satisfy her burden to establish equivalency to Listing 11.02B. After the ALJ issued Plaintiff an unfavorable decision, Plaintiff submitted a “Request for Appeals Council Review.” (AR. 432-33.) Notably, this appeal makes no mention of the ALJ's failure to consider whether Plaintiff's migraines met or equaled Listing 11.02B. (Id.) Plaintiff had an opportunity to raise this issue at the administrative level and did not. It appears this issue is raised for the first time here, in Plaintiff's Opening Brief. For these reasons, the ALJ did not have any obligation to discuss whether Plaintiff's migraines specifically met or medically equaled Listing 11.02B.
Even assuming that the ALJ committed an error, it would be harmless. To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in Listing 11.02B, the court considers the following factors: (1) a detailed description from an Acceptable Medical Source of a typical headache event, (2) the frequency of the headache events, (3) adherence to prescribed treatment, (4) side effects of treatment, and (5) limitations in functioning that may be associated with the primary headache disorder or effects of its treatment. SSR 19-4p at *7.
The ALJ's failure to consider whether Plaintiff's migraines equal the epilepsy listing is harmless error because sufficient, reasoned evidence is present in the record to find against Plaintiff on this issue. In making her determination, the ALJ did not fail to consider Plaintiff's migraines. Although not stated in her step three analysis, the ALJ states that “[t]he claimant's Chiari malformation and headaches have been fully considered herein.” (AR. 20.) Second, the ALJ found that Plaintiff's physical and neurological exams during 2016, 2018, and 2020 were “generally normal” including a normal range of motion, strength, and neurological exams overall. (AR. 20-21.)
The ALJ also considered treatment for such migraines and Plaintiff's adherence to prescribed treatment. Here, the ALJ states,
[a] July 17, 2018 report indicates that her chronic migraines somewhat improved with nortriptyline. On July 27, 2018, the claimant reported continued headaches but had stopped nortriptyline. An HPI reveals she was going to try propranolol for headaches. A report dated August 14, 2018 shows the claimant chronic migraines somewhat improved with nortriptyline but she was unable to tolerate.(AR. 21) (citations omitted). The ALJ also found that, despite her migraines, Plaintiff attended class and completed a college degree with a 3.85 GPA during the relevant time period. (AR. 22.) Thus, the ALJ's determination that Plaintiff was not disabled due to her migraines is supported by substantial evidence. As such, even if the ALJ failed to compare Plaintiff's migraines with Listing 11.02B - which she did not - it constitutes harmless error.
B. Step Five Analysis
If the ALJ proceeds to step five, they must determine whether the determined RFC allows the claimant to perform other work. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(v). This determination is made considering four factors: (1) the claimant's RFC, (2) age, (3) work experience, and (4) education. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Further, Social Security Rule 00-4p provides that “[w]hen a [vocational expert] ... provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that [vocational expert] ... evidence and information provided in the [Dictionary of Occupational Titles (“DOT”)].” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).
Appendix D to the Selected Characteristics of Occupations (“SCO”) defines various levels of noise to which workers are exposed on the job, ranging from level one to level five. Level one corresponds with “Very Quiet” and level five corresponds with “Very Loud.” In this case, levels three and four are at issue. The SCO defines level three as a work environment with “Moderate” noise, such as a “business office where type-writers are used; department store; grocery store; light traffic; [or] fast food restaurant at off-hours.” Environmental Conditions, SCODICOT Appendix D. The SCO defines a level four work environment to have a “Loud” noise level, including a “can manufacturing department; large earth-moving equipment; [or] heavy traffic.” Id.
In this case, the ALJ determined that Plaintiff should avoid “concentrated exposure to noise.” (AR. 19.) When asked at the hearing, the vocational expert (“VE”) testified that this meant avoiding “loud” level four noise levels. (Tr. 62). As a result of this, the ALJ included two representative jobs at step five with a noise level of three: a marketing clerk and an office helper. (AR. 25.) However, substantial evidence exists on the record that at least raises a question as to whether Plaintiff should also be excluded from representative jobs with a noise level of three and higher, rather than four and higher.
For example, in 2018, Plaintiff underwent an audiological evaluation to determine hearing sensitivity. (AR. 552-53.) The results revealed a “moderate to moderately severe neural hearing loss as evident by present OAEs with poor word recognition in quiet and absent acoustic reflex responses.” (Id.) Plaintiff also received a QuickSIN speech noise test to determine Plaintiff's ability to understand speech in a noisy environment. (Id.) The results of that test demonstrated a +9dB signal to noise ratio. (AR. 553.) These results indicate that “[Plaintiff] will have difficulty understanding a speaker in a noisy setting such as a classroom or restaurant without the benefit of assistive technology.” (Id.) Plaintiff's medically recognized hearing difficulties appear to more clearly resemble an increased difficulty hearing in settings in level three and above, rather than level four and above. To demonstrate, level three recognizes that a claimant may have difficulty hearing in “fastfood restaurants at off hours” and Plaintiff's hearing results indicate that she would have difficulty understanding a speaker in a restaurant. This appears to contradict with the VE's interpretation of the RFC as only precluding jobs at a level four or above.
As Plaintiff points out in her Opening Brief, the ALJ cites very limited and unspecific evidence as to why it included representative jobs with a noise level of three, despite evidence in the record indicating that Plaintiff may be incapable of performing jobs at that noise level. If Plaintiff is excluded from representative jobs at a level three noise level, that eliminates her from 143,000 jobs in the national market - a factor certainly relevant to the ALJ's disability determination analysis. Yet, the ALJ summarily states “[t]he claimant has a history of bilateral sensorineural hearing loss with hearing aid, which has been fully considered herein.” (AR. 21) (citations omitted). And although the ALJ included “avoid concentrated exposure to noise,” the ALJ fails to identify what level of noise Plaintiff can handle in a work environment and why. Thus, “it is unclear exactly how much noise the ALJ believed [Plaintiff] could tolerate” and “[t]his ambiguity created a conflict that the ALJ should have resolved.” Stover v. Commissioner of Social Security, No. 17-CV-1029-FPG, 2018 WL 5262463 at *4-5, (W.D.N.Y. Oct. 23, 2018). For these reasons, the ALJ's decision to include representative jobs with a noise level of three is not supported by substantial evidence.
Defendant claims this failure to address the apparent conflict constitutes harmless error. Defendant argues that even if Plaintiff is disqualified from the two representative occupations with level three noise levels, there remains one occupation at a level two noise level that Plaintiff can perform- a Routing Clerk. (Doc. 16. at 6.) Routing Clerk positions require “frequent” near vison acuity, however, and Plaintiff argues that her RFC requiring “only occasional reading of fine print” precludes such work. See DICOT 222.687-022; (AR. 19.) This highlights another example where the ALJ should have considered possible conflicts between the Dictionary of Occupational Titles, the VE's testimony, and Plaintiff's RFC. Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (“When there is an apparent conflict between the vocational expert's testimony and the DOT, for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle - the ALJ is required to reconcile the inconsistency”). The Court finds that the error is not harmless and remand is required.
C. Credit As True Rule
The credit-as-true rule only applies in “rare circumstances” - the ordinary rule is remand for additional investigation or explanation. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014). Three elements must be met for the Court to be able to properly exercise its discretion to remand for benefits. Id. at 1100-01. First, the Court must determine that the ALJ made a legal error, such as failing “to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). Second, the Court must determine whether “the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful.” Id. at 1101 (internal quotations omitted). The record must be free from conflict or ambiguity, with “all essential factual issues ... resolved.” Id. And third, the Court must find that “the record, taken as a whole, leaves ‘not the slightest uncertainty'” that the ALJ would be required to find the claimant disabled if the improperly rejected evidence was taken as true. Id. If all three elements of the test are met, the Court may remand for an award of benefits unless it has serious doubt that the claimant is in fact disabled. Id. at 1101-02. The Court “retain[s] ‘flexibility' in determining the appropriate remedy.” Garrison, 759 F.3d at 1021.
In this case, the second prong of the credit-as-true rule is not satisfied because there are outstanding issues that must be resolved before a determination of disability can be made. First, the ALJ must decide the level of noise Plaintiff can tolerate in a work setting based on her documented hearing loss. Because the ALJ did not make that determination in her decision, there is significant ambiguity as to which representative jobs should or should not be included by the VE at step five. Second, once this determination is made, the ALJ must consider potential conflicts between the DOT, the VE's testimony, and Plaintiff's RFC. Therefore, remand for additional investigation is required.
IV. CONCLUSION
The Court finds that the ALJ did not err when it failed to consider whether Plaintiff's migraines met or equaled the epilepsy listing in 11.02B. But, the ALJ committed reversible error at step five because her findings were not supported by substantial evidence. Because the credit-as-true doctrine is not satisfied, the Court will remand this matter to the ALJ to reconsider step five as it relates to Plaintiff's documented hearing loss.
Accordingly, IT IS ORDERED that the final decision of the Social Security Commissioner is vacated and this matter is remanded to the Social Security Administration for further proceedings consistent with this Order.
IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly and close this case.