Opinion
CV-21-0488-PHX-DWL (MHB)
02-10-2022
Beatrice Jernigan, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
REPORTAND RECOMMENDATION
HONORABLE MICHELLE H. BURNS, UNITED STATES MAGISTRATE JUDGE
At issue is the denial of Plaintiff Beatrice Jernigan's Application for Social Security Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) under the Social Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of that denial and an Opening Brief (Doc. 20). Defendant SSA filed an Answering Brief (Doc. 23), and Plaintiff filed a Reply (Doc. 24). This Court has reviewed the briefs and Administrative Record (“AR”) (Doc. 19) and recommends that the Administrative Law Judge's (“ALJ”) decision be affirmed. (AR at 48-59).
I. Background
Plaintiff filed an Application for SSDI benefits on August 29, 2018, alleging a disability beginning on December 19, 2017. (AR 51). Plaintiff's claim was initially denied on October 15, 2018, and upon reconsideration on April 2, 2019. (Id.). A hearing was held before ALJ Christina Young Mein on July 8, 2020. (Id.). Plaintiff was 51 years old at the time of the hearing and held previous employment as a clinical researcher and a data collector. (Id. at 23-29). Plaintiff's Application was denied by the ALJ on July 29, 2020. (Id. at 48). Thereafter, the Appeals Council denied Plaintiff's Request for Review of the ALJ's decision and this appeal followed. (Doc. 1).
After considering the medical evidence and opinions, the ALJ evaluated Plaintiff's disability claim based on the severe impairments of migraine headaches, depressive disorder, anxiety disorder and chronic obstructive pulmonary disease. (AR 53). The ALJ also discussed Plaintiff's other non-severe impairments of obesity, obstructive sleep apnea, diabetes, hypertension, gastroesophageal reflux disease, carpal tunnel syndrome, and subscapular bursitis. (Id.). While the ALJ noted that Plaintiff's severe and non-severe impairments limited her ability to perform basic work activities, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform a range of medium work, and thus was not disabled. (Id. at 55).
Plaintiff argues that the ALJ's RFC determination is flawed based on her failure to properly consider the opinions of state agency reviewing physicians Daniel Gross, Psy.D., and A. Goldberg, Psy.D., J.D. (Doc. 20). The Commissioner argues that the ALJ's opinion is free of harmful error. (Doc. 23). The Court has reviewed the medical record and will discuss the pertinent evidence in addressing the issues raised by the parties.
II. Legal Standards
An ALJ's factual findings “shall be conclusive if supported by substantial evidence.” Biestek v. Berryhill, 139 S.Ct. 1148, 1153 (2019). The Court may set aside the Commissioner's disability determination only if it 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. 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, 954 (9th Cir. 2002) (citations omitted). 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).
To determine whether a claimant is disabled for purposes of the 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 presently engaging in substantial gainful activity. 20 C.F.R. §404.1520(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. § 404.1520(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. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she determines whether 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. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id.
III. Analysis
Plaintiff first argues that the ALJ's RFC determination is flawed because she failed to properly consider the opinions of state agency reviewing physicians Daniel Gross, Psy.D., and A. Goldberg, Psy.D., J.D. (Doc. 22). Plaintiff contends her case should be remanded for an award of benefits, or alternatively remanded for a rehearing. After reviewing the record, the parties' briefs, and applicable law, the decision of the Commissioner is affirmed.
As Plaintiff applied for disability benefits after March 27, 2017, the new set of regulations for evaluating evidence from medical providers applies to this case. See 20 C.F.R. § 416.920c. These regulations eliminate the previous hierarchy of medical opinions, and the ALJ is not allowed to defer to or give specific weight to any medical opinions. The new regulations for considering physician opinions states as follows:
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources . . . The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.20 C.F.R. § 416.920c.
Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider's relationship with the claimant, the length of the treatment relationship, frequency of examinations, purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c.
The regulations define “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). All “other medical evidence” that an ALJ considers as part of the Administrative Record is defined as “evidence from a medical source that is not objective medical evidence or a medical opinion, including judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R. § 416.913(a)(3).
The regulations require ALJ's to articulate how persuasive they find all the medical opinions and prior administrative medical findings and set forth specific “articulation requirements” for the ALJ's evaluation of the medical opinion evidence. 20 C.F.R. §§ 404.1520c(b), 416.920(b). The Ninth Circuit has not yet addressed the 2017 regulations in relation to its standards for the review of medical opinions. However, the new regulations require an ALJ to explain their reasoning with specific reference to how they considered the supportability and consistency factors, 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b), and still require the ALJ to provide legally sufficient reasons supported by substantial evidence for finding a medical opinion unpersuasive. See, e.g., Beason v. Saul, 2020 WL 606760, *3 (C.D. Cal. Feb. 7, 2020); Jessica B. v. Comm'r of Soc. Sec., 2021 WL 4452850, at *3 (W.D. Wash. Sept. 29, 2021).
Overall, an ALJ's findings must be supported by substantial evidence. An ALJ meets 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, 157 F.3d at 725). This means that an ALJ must “do more than state conclusions.” Id. Rather, the ALJ “must set forth his own interpretations and explain why they, rather than the doctors', are correct.” (Id.).
Here, two non-examining source doctors, Daniel Gross, Psy.D., and A. Goldberg, Psy.D., J.D., found that Plaintiff could understand and remember simple instructions; work consistently for two-hour segments; make simple judgments and work-related decisions; respond appropriately to others; and deal with changes in a routine work setting, but was limited to “understanding, carrying out, and remembering 1 to 2 step instructions.” (hereinafter “1 to 2 step limitation”) (AR 58). In arriving at the RFC determination of medium work, the ALJ found the opinions of Drs. Gross and Goldberg persuasive, “other than the limitation to one-to-two steps.” (Id.). In support, The ALJ cited several medical source records that demonstrated Plaintiff's normal memory and intact judgment. (AR 463, 477, 514, 520, 555, 662). The ALJ also noted the one-to-two step limitation “is not consistent with [Plaintiff]'s average range IQ and mild attention difficulties.” (AR 515, 517, 528, 530, 534). Additionally, in finding that Plaintiff's statements about the intensity, persistence, and limiting effects to be inconsistent with the record, the ALJ cited numerous findings of no memory impairment. (AR 463, 477, 514, 520, 779).
The ALJ also considered the medical records of consultive examiner Daniel Spezzacatena, MA, Ed.S., Psy.D., citing his neuropsychological findings. (AR 526-31).Although Dr. Spezzacatena did not provide functional limitations, the ALJ noted that his examination findings of “normal neuropsychological performance” and no evidence of an underlying neurodegenerative condition were persuasive and supported by his objective examination and consistent with Plaintiff's normal memory, attention, and judgment, citing in support numerous instances in the record. (AR 463, 477, 482, 514, 520, 555, 662, 779). Also, the ALJ cited from Dr. Spezzacatena's report that “learning and memory were areas of strength.” (AR 517).
Duplicate of AR 513-518.
Plaintiff asserts that the ALJ did not give legally sufficient reasons for rejecting the findings of non-examining psychologists Dr. Gross and Dr. Goldberg regarding Plaintiff's 1 to 2 step limitation. Specifically, Plaintiff asserts that the ALJ failed to reconcile her rejection of the 1 to 2 step limitation with Dr. Spezzacetena's finding that Plaintiff's rote memory difficulties were in the “borderline range.” Plaintiff asserts that “[j]ust because [Plaintiff] can understand more than two-step instructions does not mean that she can remember and carry out more than two-step instructions.” (emphasis in original). As an initial matter, however, Plaintiff does not establish that a rote attention ability in the “borderline range” necessarily compels a 1 to 2 step limitation. Nevertheless, the ALJ noted numerous instances in the record, as set forth above, where treating medical sources, who had a longer and more extensive relationship with Plaintiff, indicated she had normal memory and mild attention difficulties. Although Plaintiff states that the ALJ failed to reconcile the result of Dr. Spezzacatena's “Wechsler objective memory testing, ” Plaintiff does not, in the context of the entire neuropsychological examination, explain why the testing result compelled a 1 to 2 step limitation, and in any event the ALJ cited to findings by Dr. Spezzacatena's that memory was one of Plaintiff's strengths.
A 1 to 2 step limitation would render Plaintiff ineligible for the “medium work” occupations identified by the ALJ at Step-5. See, Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1002-05 (9th Cir. 2015) (“DOT occupation with the Reasoning Level of 2 is facially inconsistent with a restriction to one-to-two step instructions or tasks.”). The parties did not address whether a 1 to 2 step limitation would render Plaintiff nonetheless eligible for “low” work.
Plaintiff asserts the ALJ ignored findings of “clinically significant daytime sleepiness, ” and a finding that this could exacerbate her cognitive symptoms. Although Plaintiff complained of sleep deprivation during the course of her treatment, she cites no medical source who made a clinical finding that her sleep deprivation caused her memory or attention problems. Plaintiff's documented sleep deprivation supports the ALJ's finding of the non-severe impairment of obstruction sleep apnea. However, the fact that sleep deprivation could exacerbate her cognitive symptoms is speculative as to any actual effect on her cognitive impairment or correlation with a 1 to 2 step instructions. And, the ALJ cited numerous instances in the record wherein normal cognitive findings accompanied Plaintiff's reports of sleep deprivation.
Even considering the indications in the record that Plaintiff had rote attention difficulties or suffered from sleep deprivation, the ALJ's failure to specifically address them in rejecting the non-examining providers' 1 to 2 step limitation is harmless, as the ALJ cited legally sufficient reasons for finding that opinion unpersuasive. The ALJ addressed its lack of supportability and lack of consistency with the record as a whole, and in doing so cited specific references in the record. The ALJ's opinion is supported by substantial evidence. While the evidence may be “susceptible to more than one rational interpretation, ” the ALJ's conclusion must be upheld. Thomas, 278 F.3d 954.
Accordingly, IT IS RECOMMENDED that the Court AFFIRM the July 29, 2020, decision of the Administrative Law Judge.
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. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly.