Opinion
CV 20-00286-TUC-DCB (LAB)
06-22-2021
Sean Plas, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman, United States Magistrate Judge.
The plaintiff, Sean Plas, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 13)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings. At step three of the disability analysis, the Administrative Law Judge (AL J) did not provide substantial evidence that Plas does not meet the “C2” criteria of Listing 12.06. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
PROCEDURAL HISTORY
On August 11, 2018, Plas constructively filed an application for supplemental security income pursuant to Title XVI of the Social Security Act. (Doc. 20-3, p. 14) He alleged disability beginning on January 1, 2003, due to Asperger's Syndrome, Bi-Polar Disorder, Oppositional Defiant Disorder, Attention Deficit Disorder, and Social Anxiety Disorder. (Doc. 20-7, p. 11)
Plas's application was denied initially and again upon reconsideration. (Doc. 20-3, p. 14) He requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Charles Davis on February 4, 2020. (Doc. 20-3, pp. 32-34) In his decision, dated February 11, 2020, the ALJ found that Plas was not disabled because he could work as a packager, DOT 920.587-018, a conveyor monitor, DOT 921.685-026, or a laundry worker, DOT 361.685-018, in accordance with the testimony of the vocational expert. (Doc. 20-3, pp. 26-27)
On May 22, 2020, the Appeals Council denied Plas's request for review making the decision of the ALJ the final decision of the Commissioner. (Doc. 20-3, p. 2) Plas subsequently filed this action seeking review of that final decision. (Doc. 1)
Work History and Medical History
In October of 2016, Plas was examined by Randy Rhoad, Psy.D., for the Virginia Department of Rehabilitative Services. (Doc. 20-8, p. 42) Rhoad diagnosed Plas with Autism Spectrum Disorder and Attention-Deficit/Hyperactivity Disorder. (Doc. 20-8, p. 47) Rhoad made the following recommendations: “[Continued monitoring of Sean's academic progress :o assist as necessary in achieving the regular-diploma status. Continued medication management of current medications is recommended. Exploration of Sean's vocational interests and aptitude is also suggested.” (Doc. 20-8, p. 47)
In August of 2018, Lori Danker, RNP, completed a Mental Residual Functional Capacity Assessment. (Doc. 20-7, pp. 2-5) She opined that Plas has “marked” impairment in his ability :o understand, remember or apply information, “extreme” impairment of his ability to interact with others, “moderate” impairment of his ability to concentrate, persist, or maintain pace, and “extreme” impairment in his ability to adapt or manage himself. Id.
In February of 2019, Plas was examined by Noelle Rohen, M.D., for the state disability determination services. (Doc. 20-8, p. 110-116) Rohen diagnosed Plas with Autism Spectrum Disorder and Social Anxiety Disorder. Id. She completed a Psychological/Psychiatric Medical Source Statement. Id. She opined that Plas will “struggle the most” with social interaction. Id. She warns that his “social awkwardness will be evident to others and may draw discriminatory -esponses.” Id. His “social anxiety . . is said to impair his persistence.” Id. She concluded that Plas “can learn new simple hands-on tasks and avoid basic mechanical hazards.” Id. She noted:hat his “[m]other indicates he has difficulty with adaptation which would be consistent with Autism Spectrum Disorder] . . . .” Id.
In February of 2019, Jaine Foster-Valdez, Ph.D., reviewed Plas's medical record for the disability determination service. (Doc. 20-4, pp. 12-13) She documented the impairments Autism Spectrum Disorder and Attention Deficit/Hyperactivity Disorder. Id. Under the “B” criteria, she found mild impairment in Plas's ability to understand, remember or apply nformation and his ability to concentrate, persist, or maintain pace. Id. She found moderate mpairment in his ability to interact with others and ability to adapt or manage oneself. Id. Foster-Valdez also completed a Mental Residual Functional Capacity Assessment. (Doc. 20-4, pp. 15-16) She found that Plas was moderately limited in his ability to interact appropriately with the general public, his ability to respond appropriately to changes in the work setting, his ability to travel to unfamiliar places or use public transportation, and his ability to set realistic goals or make plans independently of others. Id.
On reconsideration, in May of 2019, E. Campbell, Ph.D., reviewed Plas's medical record for the disability determination service. (Doc. 20-4, pp. 28-29) He documented the mpairments Anxiety and Obsessive-Compulsive Disorders, Autism Spectrum Disorder, and Neurodevelopmental Disorders. Id. His analysis of the “B” criteria was the same as Foster-Valdez's. Id. Campbell also completed a Mental Residual Functional Capacity Assessment and found the same functional limitations that Foster-Valdez found earlier. (Doc. 20-4, pp. 31-32)
At the hearing before ALJ Davis, Plas explained that he was almost 21 years old and had graduated from high school. (Doc. 20-3, p. 35) He has never worked. (Doc. 20-7, p. 11)
Plas explained that he cannot get a job because “I'm not really social . . .” and “I get nervous under social stuff . . . .” (Doc. 20-3, p. 36) He lives with his mother and brother. Id. Plas is responsible for completing his chores such as “taking the dog out, tak[ing] out the trash, unloading the dishwasher, cleaning up the living room when it needs to be cleaned up, [and] checking the mail.” (Doc. 20-3, pp. 36-37) He goes to the movies “once in a while.” (Doc. 20-3, p. 38) Plas's mother testified that her son must stick to a routine every day. (Doc. 20-3, p. 39) Otherwise, he has a fit, melts down, hits his head against the wall, and says he wants to die. Doc. 20-3, p. 39)
The vocational expert testified that a person with the claimant's age, education, and no prior work history, “who was limited to simple, repetitive, routine tasks, with no interaction with:he public, and occasional interaction with supervisors and coworkers, on a superficial work basis and occasional . . . changes in workplace routine, ” could work as a packager, DOT 920.587-018, a conveyor monitor, DOT 921.685-026, or a laundry worker, DOT 361.685-018. Doc. 20-3, p. 44).
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. § 416.920. The first step equires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4). If so, the claimant is not considered disabled and benefits are denied. d.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step wo, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4). In making a determination at step two, :he ALJ uses medical evidence to consider whether the claimant's impairment significantly imits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that:he Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. § 416.920(a)(4). If yes, hen the claim is denied. Id. If the claimant cannot perform any past relevant work, then the AL J must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4). “There are two ways for the [ALJ] to meet:he burden of showing that there is other work in ‘ significant numbers' in the national economy:hat claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2, ” also known as the “Grids.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. § 416.945.
The ALJ's Findings
At step one of the disability analysis, the ALJ found “[t]he claimant has not engaged in substantial gainful activity since August 10, 2018, the application date (20 CFR 416.971 et seq.).” (Doc. 20-3, p. 16)
At step two, the ALJ found “[t]he claimant has the following severe impairments: Asperger's Syndrome/Autism Spectrum Disorder; Anxiety Disorder; Attention Deficit Disorder;20 CFR 416.920(c)).” (Doc. 20-3, p. 16) At step three, the ALJ found “[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” (Doc. 20-3, p. 17)
The ALJ then analyzed Plas's residual functional capacity (RFC). He found “[t]he claimant has the residual functional capacity to perform a full range of work at all exertional evels but with the following non-exertional limitations: The claimant could perform work that s limited to simple repetitive routine tasks with no interaction with the public and occasional nteraction with co-workers and supervisors on a superficial work basis and occasional changes n the work routines.” (Doc. 20-3, p. 20)
At step four, the ALJ considered Plas's “age, education, work experience, and residual functional capacity” and found “there are jobs that exist in significant numbers in the national economy that the plaintiff can perform (20 CFR 416.969 and 416.969(a)), ” specifically packager, DOT 920.587-018, conveyor monitor, DOT 921.685-026, and laundry worker, DOT 361.685-018. (Doc. 20-3, pp. 26-27)
STANDARD OF REVIEW
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3). “[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity:hat he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he ives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
The findings of the ALJ are meant to be conclusive. The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such elevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider:he entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
“An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment.” Orn, 495 F.3d at 635 (punctuation modified). “However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief.” Id. “The ALJ must cite the reasons why the claimant's testimony is unpersuasive.” Id. If the ALJ does not find “affirmative evidence” of malingering, “those reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion: Listing 12.06
Plas argues first that this action should be remanded because the ALJ failed to correctly analyze the “C” criteria of Listing 12.06. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The court agrees. The court does not reach the claimant's alternate claims of error.
At step three of the disability analysis, the ALJ must determine whether the claimant's mpairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. Listing 12.06 describes “[a]nxiety and obsessive-compulsive disorders. . . .” Id. Listing 12.06 reads in pertinent part as follows: 12.06 Anxiety and obsessive-compulsive disorders (see 12.00B5), satisfied by A and B, or A and C:
A. Medical documentation of the requirements of paragraph 1, 2, or 3: 1. Anxiety disorder, characterized by three or more of the following;
a. Restlessness;
b. Easily fatigued;
c. Difficulty concentrating;
d. Irritability; *
e. Muscle tension; or f Sleep disturbance.
* AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).20 C.F.R § Pt. 404, Subpt. P, App. 1.
In this case, the ALJ analyzed Listing 12.06. He found that Plas has an Anxiety disorder satisfying the “A” criteria for Listing 12.06. He further found, however, that Plas does not satisfy the “B” or “C” criteria for Listing 12.06.
As to the “C” criteria, the ALJ found initially that Plas does have a mental impairment hat has persisted for more than two years - Anxiety disorder. (Doc. 20-3, p. 20) The ALJ also found as follows:
Further the claimant was receiving treatment in the form of outpatient therapy, outpatient medication management, and support from a social worker. However the evidence fails to show that the claimant has achieved only marginal adjustment (i.e. he has only a minimal ability to adapt to changes in his environment and daily life). On the contrary, it is clear from the record that the claimant is able to attend medical visit[s], care for a pet, and perform his activities of daily living. In view of the above, the undersigned finds that the “paragraph C” criteria are not met in this case.Doc. 20-3, p. 20)
Apparently, the ALJ believed that Plas's Anxiety disorder meets the “C1” criteria. However, his ability “to attend medical visit[s], care for a pet, and perform his activities of daily iving” was substantial evidence that he did not fulfill the “C2” criteria of Listing 12.06. The court does not agree with the ALJ's “C2” analysis.
The proper analysis of the “C2” criteria is discussed in the regulations at Listing 12.00G2c. That Listing reads as follows:
The criterion in C2 is satisfied when the evidence shows that, despite your diminished symptoms and signs, you have achieved only marginal adjustment. “Marginal adjustment” means that your adaptation to the requirements of daily life is8fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life. We will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting, without substantial psychosocial supports (see 12.00D). Such deterioration may have necessitated a significant change in medication or other treatment. Similarly, because of the nature of your mental disorder, evidence may document episodes of deterioration that have required you to be hospitalized or absent from work, making it difficult for you to sustain work activity over time.20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Plas's ability “to attend medical visit[s], care for a pet, and perform his activities of daily iving” does not indicate that he has more than “a minimal capacity to adapt to changes in [his] environment or to demands that are not already part of [his] daily life.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.00G2c. Plas's activities of daily living and pet care are not “changes” in his environment to which he must adapt. They are the norm for his lifestyle. If Plas were to discover one day that his pet was sick and he was able to take the pet to the veterinarian, that would be some evidence that he has the ability to adapt to demands that are not already part of his daily pet care. Alternatively, if Plas were unloading the dishwasher one day and discovered the dishwasher was leaking and was able to call a plumber to fix it, that too would be some evidence that Plas is able to adapt to demands not already part of his daily life. The ALJ, however, did not identify anything like that.
If Plas were living alone, one might reasonably assume that taking care of a pet and attending to one's activities of daily living entail some ability to adapt to change because pets and daily activities present changes to the normal routine from time to time. See, e.g., Craig N. v. Saul, 2020 WL 4284845, at *22 (N.D. Cal. 2020) (Plaintiff showed more than marginal adjustment who “has been able to live alone for years with only minor support, without any evidence of exacerbation of his symptoms or deterioration in his functioning due to changes in his environment.”). Plas, however, does not live alone. He lives with his mother, so the court cannot make that assumption. In fact, Plas's mother testified that Plas must stick to a routine every day. (Doc. 20-3, p. 39) Otherwise, he has a fit, melts down, hits his head against the wall, and says he wants to die. Id. The evidence seems to indicate that Plas's mother is the one who has to adapt to changes in his daily activities.
Medical visits are also a change to one's ordinary daily life. If Plas could attend his medical visits unaccompanied, that would be some evidence that he has the ability to adapt to changes in his ordinary activities. See, e.g., Susan O. v. Comm'r, Soc. Sec. Admin., 2019 WL 6499126, at *6 (D. Or. 2019) (Plaintiff had more than minimal capacity to adapt to changes where “the record reflects Plaintiff planned her wedding, left her house regularly for appointments and to shop in addition to traveling extensively.”) (appeal filed Feb. 3, 2020). The record, however, shows that Plas does not attend medical visits alone. He is always accompanied by his mother. (Doc. 20-3, p. 41) And even then, getting Plas out of the house can be difficult. “He has to be prepared to know that he's going to the doctor because he doesn't like to leave the house.” (Doc. 20-3, p. 40) In fact, the record indicates that getting Plas :o the hearing with the ALJ required one “meltdown” and “many talks.” Id. Plas's ability “to attend medical visit[s], care for a pet, and perform his activities of daily living” is not substantial evidence that he does not fulfill the “C2” criteria of Listing 12.06. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The Commissioner argues the ALJ's “C2” analysis is supported by the medical record, which contains many treatment notes that indicate “normal mental status with minimal reatment.” (Doc. 22, p. 10) He concedes that the ALJ did not cite these treatment notes in the section that provides the paragraph “C” analysis, but he maintains that as long as the ALJ discusses all of his relevant findings somewhere, that is sufficient. (Doc. 22, p. 10, n. 4) The court agrees that as long as the ALJ's findings and analysis are plain, it does not matter much where in the decision they are located. The problem here, however, is that while the ALJ found:hat the medical record contained evidence of “normal mental status with minimal treatment, ” he did not indicate how this finding relates to the issue at hand. See (Doc. 22, p. 10) That is, :he ALJ did not say that this finding has any relevance to the paragraph “C2” criteria. Perhaps he believed that Plas's “normal mental status with minimal treatment” showed that Plas fulfilled:he “C1” criteria, which would be a reasonable conclusion because the “C1” criteria requires a showing of mental health treatment “that diminishes the symptoms and signs of your mental disorder.” See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Without more, the court cannot conclude:hat the ALJ thought Plas's “normal mental status with minimal treatment” was evidence that he has more than “minimal capacity to adapt to changes in [his] environment or to demands that are not already part of [his] daily life.” Id. The court therefore cannot treat the ALJ's finding:hat the medical record shows “normal mental status with minimal treatment” as substantial evidence supporting his “C2” analysis. See, e.g., Needham v. Berryhill, 2019 WL 5626641, at * 19 (N.D. Cal. 2019) (Where “the ALJ's reasoning concerning Paragraph B [was] appropriate for [the] court to assess when determining whether the ALJ adequately supported his conclusion:hat plaintiff did not satisfy Paragraph C, ” the court nevertheless found the ALJ's Paragraph C analysis insufficient because it was unclear to which part of the Paragraph C analysis that prior reasoning applied.); but see Melvin N. v. Saul, 2020 WL 1916177, at *4 (E.D. Wash. 2020) (“The step three findings by the ALJ must be read in conjunction with the entire ALJ decision.”).
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after ts independent review, reverse the final decision of the Commissioner and remand for further proceedings. At step three of the disability analysis, the ALJ did not provide substantial evidence that Plas does not fulfill the “C2” criteria of Listing 12.06. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
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. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the court.