Opinion
CV-21-00215-TUC-RCC (MSA)
03-29-2022
Teresa Eileen Montano, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria Aguilera United States Magistrate Judge
Teresa Eileen Montano seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 20, 22, 23.) For the following reasons, the Court will recommend that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for further proceedings.
Background
I. Procedural History
In 2018, Montano filed an application for disability insurance benefits, alleging a disability onset date of December 26, 2016. (AR 410.) The application was denied initially and on reconsideration. (AR 320, 333.) Montano requested a hearing before an administrative law judge (ALJ), and a hearing was held in June 2020. (AR 300-19, 358.) After the hearing, the ALJ issued a written decision denying Montano's application. (AR 14-29.) Thereafter, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Montano initiated this lawsuit in May 2021, seeking judicial review of the ALJ's decision. (Doc. 1.)
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. At step one, the ALJ found that Montano had not engaged in substantial gainful activity since her alleged onset date. (AR 17.) At step two, the ALJ found that Montano had three severe impairments: dysfunction of the joints, bilateral carpal tunnel syndrome, and peripheral neuropathy. (AR 17.) The ALJ found that Montano's mental impairments, including cognitive dysfunction, bipolar disorder, and schizophrenia, were non-severe. (AR 18, 21.) At step three, the ALJ found that Montano did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (AR 23.)
Between steps three and four, the ALJ found that Montano had the residual functional capacity to perform a range of medium work but with certain environmental and exertional limitations. (AR 23.) At step four, the ALJ found that Montano could not perform her past relevant work. (AR 27.) At step five, the ALJ found that Montano could adjust to other work available in the national economy. (AR 28.) The ALJ therefore concluded that Montano was not disabled. (AR 29.)
Legal Standard
The ALJ's decision must be affirmed if it is supported by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence means 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.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The ALJ's decision may not be overturned on account of an error that was “inconsequential to the ultimate nondisability determination.” Fordv. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038). ....
Discussion
I. The ALJ's step-two findings are supported by substantial evidence.
Montano alleges that she is disabled partially because of cognitive dysfunction, bipolar disorder, and schizophrenia. She contends that the ALJ erred at step two by finding these mental impairments “non-severe.” The Court disagrees.
At step two, the ALJ must determine whether the claimant has a “medically determinable” impairment that qualifies as “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). This inquiry has two components. The ALJ must first determine whether the alleged impairment is “medically determinable, ” meaning it is “established by objective medical evidence from an acceptable medical source.” Id. § 404.1521. Here, the ALJ found that Montano's mental impairments were medically determinable. (AR 17-18, 21.)
The ALJ did not state that Montano's cognitive dysfunction was medically determinable, but that finding is implied by the fact that the ALJ found this impairment “non-severe.” See 20 C.F.R. § 404.1521 (“After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe.” (emphasis added)).
If an impairment is medically determinable, the ALJ must then determine whether it is “severe, ” meaning it “significantly limit[s the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R §§ 404.1521, 404.1522(a). When determining whether a mental impairment is severe, the ALJ must assess whether, and to what extent, the impairment limits the claimant's ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself. Id. § 404.1520a(c)(3). Here, the ALJ found that Montano's mental impairments were non-severe because she had only “mild” limitations in all four areas of mental functioning. (AR 21-22.)
Substantial evidence supports both findings. As to whether Montano's impairments were severe, the ALJ highlighted evidence indicating that Montano could provide information about her health, describe her work history, and comply with prescribed treatment (indicating that she could understand, remember, and apply information); that Montano spent time with friends regularly, participated in group therapy, and had a good rapport with her providers (indicating that she could interact with others); that Montano could prepare meals, watch television, attend doctor's appointments, and use the internet (indicating that she could concentrate); and that Montano could control her temper and handle her own selfcare and personal hygiene (indicating that she could adapt and manage herself). (AR 21-22.) The ALJ could rationally conclude from this evidence that Montano had only mild mental limitations.
Montano challenges the ALJ's findings on numerous grounds, none of which are persuasive. She isolates discrete items of evidence (i.e., testing results, a prescription for Alzheimer's disease medication) indicating that her mental impairments are more severe than the ALJ found and complains that the ALJ did not provide “legally sufficient reasons” for rejecting that evidence. However, while the ALJ's reasons for rejecting certain types of evidence (e.g., claimant testimony) must meet a heightened standard, the ALJ need not provide such reasons for rejecting individual treatment notes or testing results. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (stating that “the ALJ was not required to discuss every piece of evidence”). The ALJ simply must consider the evidence as a whole. See 20 C.F.R. § 404.1520b.
Montano also argues that, in finding her cognitive dysfunction non-severe, “the ALJ unreasonably relied on observations on clinical examination that Ms. Montano had ‘poor remote and recent memory.'” (Opening Br. 15.) In other words, Montano accuses the ALJ of basing the unfavorable decision on evidence that was favorable to Montano. This argument is nonsensical. In determining whether Montano's impairments were severe, the ALJ cited information that was both favorable and unfavorable to Montano. (AR 17-18.) This indicates that the ALJ appropriately balanced the evidence as a whole before deciding that it tipped against Montano. It does not show, as Montano says it does, that the ALJ based her unfavorable conclusion on evidence that was favorable to Montano. Furthermore, Montano's argument suggests that the ALJ should only cite the evidence that supports the ALJ's conclusion. But if the ALJ had done so, Montano would instead be complaining that the ALJ's decision was based on cherrypicked information.
Finally, Montano says that the ALJ erred in analyzing Montano's history of drug abuse. However, the ALJ simply observed, while summarizing the medical record, that Montano had been treated for drug abuse in the past. (AR 18.) As it was clear that ongoing drug abuse was not a factor in Montano's case, it was reasonable for the ALJ to not say more. See Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (describing the two-step method for analyzing ongoing substance abuse).
Montano's challenge to the non-severe finding fails for another reason: The finding is of no consequence in the context of this case. According to Montano, the prejudice arising from the ALJ's finding manifested in the residual functional capacity (RFC). (Opening Br. 17 (stating that “[t]he ALJ's errors were harmful” because the “residual functional capacity assessment does not include any mental limitation”).) But whether an impairment is found “severe” at step two has no impact on the RFC, since that assessment is based on “all of [the claimant's] medically determinable impairments, ” including ones “that are not ‘severe.'” 20 C.F.R. § 404.1545(a)(2). In other words, the RFC “should be exactly the same regardless of whether certain impairments are considered ‘severe' or not.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).
The Court finds that the ALJ's step-two findings are supported by substantial evidence.
II. The ALJ erred in evaluating Montano's residual functional capacity.
While the Court disagrees with Montano's challenge to the ALJ's step-two findings, her argument nevertheless highlights an obvious deficiency in the ALJ's analysis. As noted above, the ALJ must consider “all” medically determinable impairments when determining a claimant's RFC. 20 C.F.R. § 404.1545(a)(2). Here, the ALJ found that Montano's mental impairments were medically determinable and resulted in mild mental limitations. (AR 1718, 21-22.) The ALJ was required to consider these impairments and limitations when determining Montano's RFC. However, the ALJ failed to do so.
At step two, the ALJ analyzed whether Montano's impairments limited her in the four main areas of mental functioning (also known as the “paragraph B criteria”). At the end of step two, the ALJ purported to incorporate this analysis into the RFC determination, stating that “[t]he following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the ‘paragraph B' mental function analysis.” (AR 22.) However, while the step-two analysis requires the ALJ to evaluate the claimant's mental impairments, that evaluation is not as rigorous as the one the ALJ must complete when determining the RFC. The ALJ acknowledged as much:
The limitations identified in the “paragraph B” criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment.(AR 22 (emphasis added).) Thus, the ALJ knew that she could not rely on the step-two severity analysis, and that “a more detailed assessment” was necessary.
At the beginning of the RFC analysis, the ALJ stated that she had “considered all symptoms” when determining the RFC. (AR 23.) This generic statement does not establish that the ALJ considered Montano's mental impairments. See Slusher v. Comm'r of Soc. Sec. Admin., No. CV-20-02038-PHX, 2022 WL 596801, at *5 (D. Ariz. Feb. 28, 2022) (concluding that identical language did not establish that the ALJ considered the claimant's mental impairments in the RFC analysis). The ALJ then summarized Montano's symptom testimony, including testimony that Montano had a poor memory and poor ability to concentrate. (AR 24.) Aside from these references, the ALJ did not mention Montano's mental impairments or limitations again.
Unsurprisingly, this failure led the ALJ to reject Montano's symptom testimony without sufficient explanation. (See Opening Br. 17 (noting that “[t]he ALJ did not rule that Ms. Montano's testimony about her activities of daily living was unreliable”).) The ALJ found that Montano's “medically determinable impairments could reasonably be expected to cause” her symptoms. (AR 24.) Given this finding, and the absence of a finding that Montano was malingering, the ALJ could reject Montano's testimony “only by offering specific, clear and convincing reasons for doing so.” Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). Under this standard, “the ALJ must specifically identify the testimony she or he finds not to be credible and . . . explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (emphasis added) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). Here, although the ALJ summarized Montano's testimony, the ALJ did not “specifically identify” it as not credible.
“[T]he ALJ here identified specific, non-severe mental limitations at step two and then erred by failing to consider-or at least making it clear that [s]he considered-those limitations in h[er] RFC determination.” Slusher, 2022 WL 596801, at *5. The ALJ also erred by implicitly rejecting Montano's testimony. These errors were harmful because, if the ALJ had credited Montano's testimony and otherwise considered her mental impairments, the RFC may have included mental limitations affecting Montano's ability to perform the jobs cited by the ALJ at step five. See id. (finding harmful error because “the ALJ's conclusion that Plaintiff could perform light work may have been different had Plaintiff's [mental] limitations . . . been considered in the determination”). The Court will recommend that the ALJ's decision be reversed. See Solomon v. Comm'r of Soc. Sec. Admin., 376 F.Supp.3d 1012, 1021-22 (D. Ariz. 2019) (reversing in highly analogous circumstances); Slusher, 2022 WL 596801, at *5 (same).
Montano also challenges the ALJ's findings at step five. Given the conclusion that the ALJ erred in determining Montano's RFC, that challenge need not be addressed.
The Court agrees that the ALJ committed harmful error in evaluating Montano's mental impairments. Montano does not request an immediate award of benefits, and further proceedings are appropriate in any event. Therefore, IT IS RECOMMENDED that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for a new hearing and decision.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-21-00215-TUC-RCC.