Opinion
CV-20-0479-TUC-DCB(JR)
02-07-2022
Oscar Salazar, Plaintiff, v. Kilo Kijakazi, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M, RATEAU, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Oscar Salazar brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying her claims for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, reverse the Commissioner's final decision and remand for an award of benefits.
I. Factual and Procedural History
A. Administrative History
On November 14, 2017, Plaintiff applied for DIB, alleging disability from his onset date of June 8, 2017. (Administrative Record (AR) 17, 31, 187.) The Social Security Administration denied Plaintiff's application initially and upon reconsideration. (AR 114-117, 123-26.) Plaintiff requested a hearing and on November 20, 2019, he appeared with counsel and testified before the ALJ. (AR 36-60 (hearing transcript), 127-28.) 1
In a Decision issued on January 15, 2020, the ALJ concluded that Plaintiff was not disabled within the meaning of the SSA. (AR 14-31.) Plaintiff requested Appeals Council review and on September 5, 2020, the ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review of the ALJ's Decision. (AR 1-3.) This appeal followed.
B. Plaintiff's Background
Plaintiff was born in 1962 and has a high school education. (AR 40, 187.) He was 55 years-old on his June 8, 2017, alleged onset date and 57 years-old on the date of the ALJ's Decision. (AR 17, 31.) At the hearing, Plaintiff indicated that he suffers from degenerative joint disease, degenerative disc disease, carpal tunnel syndrome, arthritis, anxiety, and depression. (AR 41.)
C. The ALJ's Application of the Five-Step Evaluation Process
To be found disabled and qualified for DIB or SSI, a claimant must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). The same five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). The five-step process requires the claimant to show (1) he has not worked since the alleged disability onset date, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity (“RFC”) precludes him from doing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies his burden though step four, the burden shifts to the Commissioner to show at step five that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Lester v. Chater, 2 81 F.3d 821, 828 n. 5 (9th Cir. 1995); Bowen, 482 U.S. at 146 n. 5 (describing shifting burden at step five).
In this case, at step one the ALJ found that Plaintiff had not engaged in substantial gainful activity between his alleged onset date of June 8, 2017. (AR 17.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease; dysfunction of the joints; carpal tunnel syndrome; and osteoarthritis. (AR 17-18.) At that same step, the ALJ also concluded that Plaintiff's medically determinable mental impairments of depressive disorder and anxiety disorder did not cause more than minimal limitations and were therefore non-severe. (AR 22.) At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R., Pt 404, Subpt. P, App. 1. (AR 23.) Between steps three and four, the ALJ conducted an RFC assessment, and concluded that, through his date last insured, Plaintiff
“Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). A plaintiff's residual functional capacity is what she can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989).
has the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) including lifting up to 20 pounds occasionally and 10 pounds frequently, standing and/or walking up to 6 hours in an 8-hour workday, and sitting 6 hours in an 8-hour workday, with the following restrictions: The [Plaintiff] could occasionally climb, balance, stoop, kneel, crouch or crawl. The [Plaintiff] has manipulative limits of gross handling, fine fingering and fine feeling to frequent bilaterally. The [Plaintiff] could have only occasional exposure to heights, moving machinery, temperature extremes and vibrations.(AR 24.) After determining Plaintiff's RFC, the ALJ found at step four that Plaintiff could perform his past relevant work as a group home manager and job coach. (AR 31.) Accordingly, the ALJ concluded that Plaintiff was not disabled from June 8, 2017, his 3 alleged onset date, through the date of the Decision. (AR 31.) The ALJ did not render an alternative decision at step five.
II. Standard of Review
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Substantial evidence is more than a mere scintilla, but less than a preponderance, Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted), and is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
III. Plaintiff's Claims
In his Opening Brief, Plaintiff argues that the Commissioner's denial of benefits is not supported by substantial evidence. Opening Brief for Plaintiff (Doc. 20), pp. 9-23. He contends that the ALJ erred by finding that his anxiety and depression did not constitute a “severe” mental impairment. Id., pp. 17. Plaintiff alternatively contends that the ALJ's RFC assessment was not supported by substantial evidence because even if not “severe, ” Plaintiff's mental limitations should have been considered. Id., pp. 17-20. Finally, Plaintiff contends that the ALJ's step four decision that Plaintiff could perform his past relevant work was not supported by substantial evidence. Id., pp. 20-23. Based on the cited error, Plaintiff requests that the ALJ's Decision be reversed and remanded for a finding of 4 disability and an award of benefits or, alternatively, that the matter be remanded for further administrative proceedings. Id., p. 23.
In the Answering Brief and Motion for Remand, the Commissioner agrees that the evaluation of the opinion evidence was deficient and requests that the matter be remanded for further administrative action. Defendant's Answering Brief and Motion for Remand (“Answering Brief”) (Doc. 25), pp. 17-24. In reply, Plaintiff contends that, on the existing record, he was limited to “unskilled” work and should therefore be found disabled at step five and awarded benefits. Plaintiff's Reply Brief and Response to Defendant's Motion to Remand (“Reply Brief”) (Doc. 26), pp. 2-9.
IV. Discussion
A. The Medical Opinions At Issue
The parties agree that the ALJ erred by failing to explain how she considered the supportability and consistency factors delineated in 20 C.F.R. § 404.1520c(c) as required by 20 C.F.R. § 404.1520c(b)(2) when evaluating the medical opinions from Brenda Wells, M.D., and Rodric Falcon, N.P. An examination of those opinions and other record evidence establishes that there is no reasonable basis for remand for further proceedings and that Plaintiff is entitled to an immediate award of benefits.
Beginning in about March 2017, Plaintiff received mental health treatment at La Frontera Center, including anti-depressant medication. (AR 733-60.) On June 7, 2019, Plaintiff was seen via Telehealth for the first time by NP Falcon at La Frontera for a psychiatric diagnostic evaluation. (AR 743.) NP Falcon noted fair insight, fair reliability, intact recent and remote memories, normal attention and concentration (without a formal cognitive examination), and constricted affect. (AR 746.) NP Falcon diagnosed mild recurrent major depressive disorder with anxiety distress and a social anxiety disorder, and in his assessment noted that “I don't believe [Plaintiff] is capable of working at this time during this process.” (AR 746, 747, 748.) 5
In September 2019, Plaintiff, when asked about his chief complaint, told NP Falcon, “It's been going ok, I still seem to have social anxiety and don't like to be around other people.” (AR 738.) Plaintiff described his mood as “anxious and irritable, ” and NP Falcon noted fair insight, fair reliability, intact recent and remote memories, normal attention and concentration (without a formal cognitive examination), and constricted affect (but at times smiling). (AR 740-41.) NP Falcon summarized that Plaintiff was in therapy to address a patterned history of irritable moods and low frustration tolerance levels; was doing well in therapy; and complained of social avoidance and fear with outings. (AR 741.)
In October 2019, NP Falcon completed a Medical Source Statement (Mental) addressing Plaintiff's work-related limitations. (AR 629-30.) NP Falcon, in a check box format, opined that eleven to twenty percent of the workday or workweek, Plaintiff would have noticeable difficulty understanding and remembering very short, simple instructions; performing activities within a schedule, maintaining attendance, and being punctual within customary tolerances; accepting instructions and responding appropriately to criticism from supervisors; and getting along with coworkers or peers without distracting them or exhibiting behavioral extremes. (AR 629-30.) He also indicated that more than twenty percent of the workday or workweek, Plaintiff would have noticeable difficulty, among other things, understanding and remembering detailed instructions; carrying out detailed instructions; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; and responding appropriately to changes in the work setting. (AR 629-30.) When asked to summarize his conclusions in narrative form, NP Falcon wrote:
Mental status exam shows difficulty [with] concentration/attention[;] poor memory for standard tasks. Somewhat concrete thought process; secondary to M[a]or] D[epressive] D[isorder]; poor concentration, sadness6
daily; no motivation/energy; having to be prompted for basic A[ctivities of] D[aily] L[iving]
(AR 630.)
In October 2019, Dr. Wells, a treating physician, completed a medical source statement indicating that Plaintiff suffered from depression, anxiety, and memory loss. (AR 729-30.) She stated that his prognosis was good. (AR 729.) She opined that Plaintiff would need two to three unscheduled breaks during a workday depending on his anxiety, depression and confusion. (AR 730.) Dr. Wells further opined that, twenty-five percent or more of the workday, Plaintiff would be off task interfering with his ability to maintain the attention and concentration needed to perform even simple tasks. (AR 732.) She stated that Plaintiff had good days and bad days; would miss more than four days of work per month; and could not perform even low-stress work. (AR 732.) Dr. Wells agreed that Plaintiff's impairments demonstrated by signs, clinical findings, and laboratory findings or test results were reasonably consistent with her opinions and Plaintiff's symptoms. (AR 732.)
B. Payment of Benefits
Plaintiff contends that he was “clearly disabled at Step 5 on the existing record” and that the case should therefore be remanded for an immediate payment of benefits. However, as the Commissioner contends, a social security case should be remanded if additional proceedings can remedy defects in the original administrative proceeding. See Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Whether additional proceedings or an immediate award of benefits is appropriate is determined based on the evaluation of three factors and an award of benefits is appropriate only if all three of the following requirements are met:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.7 Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014).
Addressing the first requirement, the Commissioner argues that further administrative proceedings are needed to evaluate Dr Wells' and NP Falcon's opinions. Answering Brief, pp. 17-18, 21. However, the record is fully developed and contains years of detailed treatment notes and the opinions of two medical sources who conclude that Plaintiff's mental impairments prevent him from sustaining and persisting in full-time employment. The Commissioner does not identify any specific conflicts, ambiguities, or gaps in the record. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014).
What the Commissioner does offer is a litany of citations to the administrative record that are purportedly inconsistent with a finding of disability. Upon examination, however, the record entries cited are largely irrelevant to the evaluation of Plaintiff's mental impairments and are legally insufficient reasons for rejecting Dr. Wells' and NP Falcon's opinions. Nearly all the cited entries are contained in records which are unrelated to Plaintiff's mental health. Plaintiff was seen for hand numbness and carpal tunnel syndrome (AR 308, 322, 587), knee and hip pain (AR 431, ), elevated sugar levels (AR 436), elbow pain (AR 447, ), bariatric surgery (AR 482, 633, 636, 640, 648), and back pain (AR 593, 597, 601, 608, 665, 669-70, 692, 696-97, 702, 709-10, 714-15, 722-23). The Commissioner leaves unexplained how these entries might be interpreted as inconsistent with the opinions of Dr. Wells and NP Falcon. Moreover, the cited entries regularly noted Plaintiff as suffering from severe anxiety and depression (AR 522, 527, 549, 605, 793, 798, 801, 805, 809, 815) and even include references to Plaintiff's request for therapy (AR 755). The ALJ failed to provide legally sufficient reasons for rejecting the opinions of Dr. Wells and NP Falcon and the portions of the record cited by the Commissioner do nothing to cure the insufficiency.
The third and final requirement to be met for an immediate award of benefits is, if the improperly discredited evidence is credited as true, whether the ALJ would be required 8 to find Plaintiff disabled because his mental limitations prevent him from sustaining and persisting in full-time employment. See Garrison, 759 F.3d at 1021. As Plaintiff notes, Dr. Wells opined that Plaintiff would be “off task” 25% or more of the workday and was incapable of even low stress work due to depression and confusion. (AR 732.) At the hearing, the Vocational Expert testified that a person could not be off task any more than 15% of the workday and still be able to maintain employment. (AR 58-59 (“Yeah, they're no longer competitive in any sense of the word.”).
An award of benefits is appropriate where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed. Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). Here, the Court is unpersuaded by the Commissioner's suggestion that this case should be remanded for further proceedings so that the ALJ may comb the existing record for as yet unidentified inconsistencies that might conceivably contradict the opinions of medical providers who examined or treated plaintiff. “[A]llowing the ALJ to have a mulligan” does not qualify as a useful purpose for remanding for further administrative proceedings. Garrison, 759 F.3d at 1022.
V. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, reverse the Commissioner's Decision and remand for immediate payment of benefits.
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.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response 9 to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 20-0479-TUC-DCB(JR). Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 10