Opinion
CV-21-00101-TUC-CKJ (MSA)
07-14-2022
Kayla Moore, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE MARIA AGUILERA, MAGISTRATE JUDGE
Kayla Moore seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 22, 26, 27.) For the following reasons, the Court will recommend that the Commissioner's decision be affirmed.
Background
I. Procedural History.
In 2016, Moore filed an application for disability insurance benefits, alleging a disability onset date of May 2012. (AR 278.) The application was denied initially and on reconsideration. (AR 111, 123.) Moore requested a hearing before an administrative law judge (ALJ). (AR 145.) Two hearings were held in 2019, and a third was held in mid-2020. (AR 29-84, 87-110.) After the final hearing, the ALJ issued a written decision denying Moore's application. (AR 14-24.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Moore initiated this lawsuit in March 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 Moore did not engage in substantial gainful activity during the disability period. (AR 16.) At step two, the ALJ found that Moore had five severe impairments: post-stroke neurocognitive disorder; depressive disorder; anxiety disorder; paranoid personality disorder; and borderline personality disorder. (AR 17.) At step three, the ALJ found that Moore did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 17.)
Between steps three and four, the ALJ found that Moore had the residual functional capacity to perform a full range of work at all exertional levels but with certain non-exertional limitations. (AR 17.) As relevant here, the ALJ determined that Moore could have only incidental contact with coworkers and the public. (AR 17.) At step four, the ALJ found that Moore could not perform her past relevant work as a cook helper. (AR 23.) At step five, the ALJ found that Moore could adjust to other work in the national economy, namely, as a janitor cleaner. (AR 23-24.) The ALJ therefore concluded that Moore was not disabled. (AR 24.)
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.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038). ....
Discussion
I. Evaluation of Residual Functional Capacity.
Moore argues that the ALJ failed to accommodate her limited ability to engage in social interaction. However, the ALJ's findings regarding this impairment are supported by substantial evidence.
When translating evidence about a claimant's limitations into a residual functional capacity, the ALJ “may rationally rely on specific imperatives” offered by a physician “regarding [the] claimant's limitations.” Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008)). That is what occurred here. The ALJ expressly agreed with the stateagency physicians that Moore should be limited to a “non-public work setting with limited social demands” in which “direct on-going collaboration with others is not involved.” (AR 22, 120, 132.) To accommodate Moore's need for a “non-public work setting,” the ALJ limited Moore to only “brief, infrequent and superficial” contact with the public. (AR 17.) To accommodate Moore's need to avoid “direct, on-going collaboration” with coworkers, the ALJ limited Moore to work that requires only “[in]frequent[] . . . consult[ation] with or involve[ment of] co-workers.” (AR 17.) The ALJ's findings align with those of the physicians on which he relied. Thus, they are rational and must be upheld.
Moore points out that the state-agency physicians categorized her as having a “moderate” limitation in social functioning, while the ALJ categorized her as having a “marked” limitation. (AR 17, 116, 129.) She emphasizes that, under the Social Security listings, a “moderate” limitation means the claimant has a “fair” ability to function, while a “marked” limitation means the claimant has a “seriously limited” ability to function. 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.00.F.2. She says there is an “egregious inconsistency” in the fact that the ALJ adopted work restrictions tailored to a “moderate” limitation when the ALJ believed she had a “marked” limitation.
The Court is not persuaded. The ALJ and the state-agency physicians could rationally agree on what Moore's limitations were and how to accommodate them, but nevertheless disagree on how the limitations should be categorized. Given the ALJ's acceptance of the physicians' directives, it is clear the ALJ simply interpreted the word “marked” more charitably than the physicians did. This was not error, let alone “egregious” error. Indeed, and tellingly, Moore cites no treatment notes or medical opinions indicating that she is capable of less than what the ALJ found, and her own testimony indicates that she was able to work with several people at a time and accept instruction from coworkers. (AR 50, 76.)
Next, according to Moore, caselaw indicates that the work restrictions at issue do not adequately accommodate a “marked” limitation in social functioning. However, she cites only one binding case, and that case supports the Court's conclusion that there was no error. See Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). In Shaibi, the court noted that similar restrictions on social functioning were “consistent” with a “‘moderate,' rather than mild or marked,” impairment. Id. at 1107. The court agreed with the claimant, though, “that the ALJ could have come to a different conclusion . . . had the ALJ interpreted the words ‘moderate' and ‘substantial' differently.” Id. at 1108. In other words, the court observed that an ALJ can reach different, rational conclusions based on how he or she interprets the words “mild,” “moderate,” and “marked.” See id. (affirming because the ALJ's interpretation was rational, although other rational interpretations existed). In this case, the ALJ rationally determined that the work restrictions sufficiently accommodated Moore's “marked” limitation in social functioning.
II. Evaluation of Symptom Testimony.
Moore argues that the ALJ provided legally insufficient reasons for discounting her symptom testimony. This challenge fails because the ALJ accounted for the relevant parts of Moore's testimony, and because Moore fails to explain how any alleged error was harmful.
Moore testified that she had problems with her short-term memory, both at the time of her hearings and during the disability period (2012 through 2014). (AR 38, 73, 101.) She explained that she struggled to recall what she had done during previous days and weeks, and that she forgot to take her medications and find rides to medical appointments. (AR 38-39, 73, 80.) She also explained that while she had problems remembering complex instructions, she was able to remember and perform simple instructions. (AR 43-44, 50.)
The ALJ accommodated Moore's memory deficiencies by limiting her to “unskilled work.” (AR 17.) This finding is supported by substantial evidence. According to the Social Security Administration, unskilled work requires the ability “to understand, carry out, and remember simple instructions.” SSR 85-15, 1985 WL 56857, at *4 (Jan. 1, 1985). Moore herself admitted that she had no problem learning, remembering, and following simple instructions. She stated that it took only “a day or two” to learn how to track her finances on a spreadsheet, and that she had been tracking her finances for a period of years. (AR 43-44.) She also stated that it was “easy to learn” her job duties when she worked as a cook, and that she “never really had a problem” performing them. (AR 50.) She described these tasks as “really simple.” (AR 44, 50.) In addition, and as the ALJ observed, multiple physicians reviewed Moore's medical record and determined that she could perform unskilled work. (AR 18, 22, 68, 121, 134.) The ALJ could rationally rely on this evidence.
Next, Moore testified that while she could perform simple tasks as a cook, she had “a hard time keeping up” with coworkers. (AR 50.) The ALJ accounted for this testimony by precluding Moore from fast-paced work and work involving production. (AR 17.)
Next, Moore testified that she needed a cane because she had stress-induced pain in her back and knees, which caused her to fall frequently. (AR 44, 73, 76-77, 105.) The ALJ did not incorporate Moore's need for a cane into the residual functional capacity because the record showed that Moore's issues began after her date last insured. (AR 18, 33-35.) To illustrate this point, the ALJ cited numerous records showing that, during the disability period, Moore had a normal, stable gait, was not a fall risk, and did not use a cane. (AR 34-35.) These records constitute substantial evidence supporting the ALJ's determination. See Sam v. Astrue, 550 F.3d 808, 809-11 (9th Cir. 2008) (per curiam) (affirming the denial of benefits because the claimant's impairments began after his date last insured).
Finally, Moore testified that she had lost some of her childhood memories, had problems with blurry eyesight when reading, and dealt with panic attacks related to driving. (AR 38, 46, 80, 101-02.) The ALJ did not address this testimony or account for it in the residual functional capacity. While ignoring evidence can constitute harmful error, see Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991), Moore offers no analysis as to how the ALJ's omission was harmful. Moreover, the record demonstrates that any error was harmless. Moore testified that she walked or used the bus to get around during the relevant period, so panic attacks were not a factor precluding work activity. (AR 46.) She also testified that she was able to read along with her videogames, indicating that she could perform the minimal reading requirements of the cleaner job. (AR 75); see Dictionary of Occupational Titles 323.687-014, available at 1991 WL 672783. Finally, Moore did not testify, and does not argue here, that her loss of childhood memories precludes her from engaging in work activity.
IT IS RECOMMENDED that the Commissioner's decision be affirmed.
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-21-00101-TUC-CKJ.