Opinion
2:21-cv-03757-FMO (MAA)
08-08-2022
MANUEL V.,[1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the Parties' Joint Stipulation (“Joint Stip.”), the records herein, and the Report and Recommendation of the United States Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of the portions of the Report to which Plaintiff has raised objections (“Objections”). As discussed below, Plaintiff's objections do not warrant changing the outcome recommended by the Report.
Plaintiff objects that the Administrative Law Judge (“ALJ”) erred in determining that Plaintiff “did not have a severe impairment causing his headaches.” (Objections at 2.) Specifically, Plaintiff objects that “the ALJ speculated that the plaintiff's headaches may be caused by an underlying condition” such as allergic rhinitis, hypertension, or emotional factors. (Objections at 4 (citing Administrative Record (“AR”) 20.) These disorders, according to Plaintiff, were possible “secondary disorders” that the ALJ should have evaluated for severity at step two of the Commissioner's five-step evaluation. (Objections at 3-4.)
Plaintiff raised the issue of secondary disorders for the first time in his Reply brief (Joint Stip. at 13), which was not in accordance with the general rule of this circuit for briefing. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (“It is well established in this circuit that the general rule is that appellants cannot raise a new issue for the first time in their reply briefs.”) (citation and internal quotation marks omitted); Thrasher v. Colvin, 611 Fed.Appx. 915, 918 (9th Cir. 2015) (finding Social Security claims waived when raised for the first time in a reply brief) (citing Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)).
Plaintiff's objection that the alleged secondary disorders-allergic rhinitis, hypertension, and emotional factors-should have been classified as severe impairments, at step two (Objections at 4), is unpersuasive. As an initial matter, Plaintiff did not allege that these secondary disorders were a basis for disability. (Administrative Record (“AR”) 133; see also Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1995) (rejecting claimant's argument that the ALJ failed to consider the combined impact of his back impairment and depression, in part because “none of [the claimant's] applications for disability insurance benefits mentions any impairment other than his back injury”)). Nor did Plaintiff carry his burden of showing that these secondary disorders were medically determinable impairments. See Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant carries the burden of showing the existence of a medically determinable impairment). In any event, Plaintiff prevailed at step two. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (because step two was decided in the claimant's favor, he “could not possibly have been prejudiced”); see also Wills v. Saul, 829 Fed.Appx. 838, 839 (9th Cir. 2020) (same); Fry v. Berryhill, 749 Fed.Appx. 659, 660 (9th Cir. 2019) (same); Yanchar v. Berryhill, 720 Fed.Appx. 367, 370 (9th Cir. 2017) (same). And beyond step two, Plaintiff has not specified any evidence of limitations from these secondary disorders that the ALJ failed to assess in the residual functional capacity (“RFC”) assessment. The Court “reject[s] any invitation to find that the ALJ failed to account for [these impairments] in some unspecified way.” Valentine v. Commissioner Social Security Administration, 574 F.3d 685, 692 n.2 (9th Cir. 2009); see also Champagne v. Colvin, 582 Fed.Appx. 696, 697 (9th Cir. 2014) (“Moreover, [the claimant] identified no additional medically necessary limitation that should have been included in the residual functional capacity.”).
Plaintiff further objects that the ALJ's assessment of Plaintiff's RFC was not supported by substantial evidence. (Objections at 4-5.) Specifically, Plaintiff objects that the ALJ's RFC finding that Plaintiff could be expected to be absent and unavailable for work, for the equivalent of one day per month (AR 22), failed to account for the frequency of his headaches, which would cause more frequent absences from work (Objections at 5). But the specific evidence that Plaintiff cites for the alleged frequency of his headaches consists of Plaintiff's subjective reports and the opinion of Plaintiff's physician, Dr. Chatterjee. (Id. (citing AR 504, 521, 559, 598).) The ALJ, however, declined to credit either Plaintiff's subjective reports (AR 23) or the opinion of Dr. Chatterjee (AR 25), and Plaintiff did not challenge these findings. See Valentine, 574 F.3d at 691-92 (rejecting claimant's challenge to an ALJ's RFC evaluation when the claimant challenged the evaluation based on evidence that the ALJ properly considered and rejected); see also Thompson v. Saul, 829 Fed.Appx. 801, 802, 803 (9th Cir. 2020) (upholding ALJ's findings regarding the claimant's credibility and the medical providers' opinions, which the claimant did not dispute or challenge).
Plaintiff further objects that the ALJ's RFC evaluation that Plaintiff could be expected to be absent and unavailable for work for the equivalent of one day per month had “absolutely no support in the record, and the ALJ cited to no evidence that would support such a limitation.” (Objections at 5.) Plaintiff further objects that “all of the medical evidence suggests that [his] medical disorders would cause him to be absent from the workplace at least twice per month.” (Id. (emphasis in original)).
These objections do not account for the ALJ's findings from the evidence in the record, which Plaintiff did not challenge. The ALJ did not find any credible or persuasive evidence suggesting that Plaintiff would be absent from the workplace at least twice per month. Rather, the only concrete medical evidence regarding how many days Plaintiff would be absent from the workplace arose from the opinion of Dr. Chatterjee. (AR 588.) As noted, the ALJ found Dr. Chatterjee's opinion unpersuasive (AR 25), and Plaintiff did not challenge that finding. From the evidence that the ALJ did evaluate as credible or persuasive, there contained no suggestion that Plaintiff would be expected to have any absences from work. Based on the ALJ's evaluation of the evidence, which Plaintiff did not challenge, the ALJ reasonably could have found that Plaintiff would be absent from work for zero days per month, rather than the one day per month that she actually found. (AR 22.) Thus, the ALJ's finding about the monthly absence appears to have been overinclusive of the limitations that would be expected of Plaintiff's medically determinable impairments, which could not have prejudiced Plaintiff. See Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (an ALJ's “overinclusion of debilitating factors is harmless” because it benefits the claimant); Nacoste-Harris v. Berryhill, 711 Fed.Appx. 378, 379-80 (9th Cir. 2017) (no reversible error from an ALJ's inclusion of additional RFC limitations that benefits, rather than prejudices, the claimant).
ORDER
IT IS ORDERED that (1) the Report is accepted, and (2) Judgment shall be entered affirming the final decision of the Commissioner of Social Security and dismissing this action with prejudice.