Tuck v. Kijakazi, No. 2:2022cv00640 - Document 24 (D. Nev. 2023)
Court Description: ORDER denying 20 Motion to Remand. ORDER granting 21 Countermotion to Affirm the Agency Decision. The Clerk of Court is directed to enter judgment in favor of the Commissioner and close this case. Signed by Magistrate Judge Brenda Weksler on 9/27/2023. (Copies have been distributed pursuant to the NEF - CT)
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Tuck v. Kijakazi Doc. 24 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 CANDICE T., 1 5 Plaintiff, 6 v. 7 Defendants. 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER KILOLO KIJAKAZI, Acting Commissioner of Social Security et al., 8 11 Case No. 2:22-cv-00640- BNW Presently before the Court is Plaintiff’s Motion for Reversal and/or Remand. (ECF No. 20). Defendant filed a response in opposition (ECF No. 22) and a Countermotion to Affirm the Agency Decision (ECF No. 21). Plaintiff then filed a Reply in support of her motion (ECF No. 23). On April 19, 2022, the parties consented to the case being heard by a magistrate judge in accordance with 28 U.S.C. § 636(c), and this matter was assigned to the undersigned magistrate judge for an order under 28 U.S.C. § 636(c). ECF No. 4. For the reasons stated below, the Court affirms the Commissioner’s final decision. I. Background On February 22, 2018, Plaintiff applied for disability insurance benefits under Title II of the Social Security Act, alleging an onset date of March 1, 2017. ECF No. 17-1 2 at 292-302. Plaintiff’s claim was denied initially and on reconsideration. Id. at 158-173 and 141-157. A telephonic hearing was held before Administrative Law Judge (“ALJ”) Gregory Hamel on January 5, 2021. Id. at 107-139. On February 3, 2021, ALJ Hamel issued a decision finding that Plaintiff was not disabled. Id. at 29-47. On March 16, 2022, the Appeals Council denied review. 25 26 27 28 1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of the nongovernmental party in this case. 2 ECF No. 17 refers to the Administrative Record in this matter which, due to COVID-19, was electronically filed. (Notice of Electronic Filing (ECF No. 17)). All citations to the Administrative Record will use the CM/ECF page numbers. Dockets.Justia.com 1 Id. at 8-14. On April 25, 2022, Plaintiff commenced this action for judicial review under 42 2 U.S.C. § 405(g). See Compl. (ECF No. 7). 3 II. Discussion 4 1. Standard of Review 5 Administrative decisions in Social Security disability benefits cases are reviewed under 42 6 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 7 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 8 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 9 obtain a review of such decision by a civil action . . . brought in the district court of the United 10 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 11 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 12 decision of the Commissioner of Social Security, with or without remanding the cause for a 13 rehearing.” 42 U.S.C. § 405(g). 14 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 15 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 16 findings may be set aside if they are based on legal error or not supported by substantial evidence. 17 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 18 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a 19 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 20 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 21 Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining 22 whether the Commissioner’s findings are supported by substantial evidence, the court “must 23 review the administrative record as a whole, weighing both the evidence that supports and the 24 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 25 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 26 27 Under the substantial evidence test, findings must be upheld if supported by inferences reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 28 Page 2 of 11 1 When the evidence will support more than one rational interpretation, the court must defer to the 2 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 3 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue 4 before the court is not whether the Commissioner could reasonably have reached a different 5 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on 6 the ALJ to make specific findings so that the court does not speculate as to the basis of the 7 findings when determining if the Commissioner’s decision is supported by substantial evidence. 8 Mere cursory findings of fact without explicit statements as to what portions of the evidence were 9 accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 10 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 11 appropriate, should include a statement of subordinate factual foundations on which the ultimate 12 factual conclusions are based.” Id. 13 2. Disability Evaluation Process and the ALJ Decision 14 The individual seeking disability benefits has the initial burden of proving disability. 15 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 16 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 17 determinable physical or mental impairment which can be expected . . . to last for a continuous 18 period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). Moreover, the individual must 19 provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 20 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 21 shifts to the Commissioner to show that the individual can perform other substantial gainful work 22 that exists in the national economy. Reddick, 157 F.3d at 721. 23 The ALJ follows a five-step sequential evaluation process in determining whether an 24 individual is disabled. See 20 C.F.R. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 25 If at any step the ALJ determines that she can make a finding of disability or non-disability, a 26 determination will be made, and no further evaluation is required. See 20 C.F.R. 27 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 28 Page 3 of 11 1 Step one requires the ALJ to determine whether the individual is engaged in substantial 2 gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the individual is engaged in SGA, then 3 a finding of not disabled is made. If the individual is not engaged in SGA, then the analysis 4 proceeds to step two. 5 Step two addresses whether the individual has a medically determinable impairment that 6 is severe or a combination of impairments that significantly limits her from performing basic 7 work activities. Id. § 404.1520(a)(4)(ii). If the individual does not have a severe medically 8 determinable impairment or combination of impairments, then a finding of not disabled is made. 9 If the individual has a severe medically determinable impairment or combination of impairments, 10 then the analysis proceeds to step three. 11 Step three requires the ALJ to determine whether the individual’s impairments or 12 combination of impairments meets or medically equals the criteria of an impairment listed in 20 13 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If the individual’s impairment 14 or combination of impairments meets or equals the criteria of a listing and the duration 15 requirement, then a finding of disabled is made. Id. § 404.1520(d). Otherwise, the analysis 16 proceeds to step four. 17 However, before moving to step four, the ALJ must first determine the individual’s 18 residual functional capacity (“RFC”), which is a function-by-function assessment of the 19 individual’s ability to do physical and mental work-related activities on a sustained basis despite 20 limitations from impairments. See 20 C.F.R. § 404.1560; see also SSR 96-8p. In making this 21 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 22 which the symptoms can reasonably be accepted as consistent with the objective medical 23 evidence and other evidence. 20 C.F.R. § 404.1545. To the extent that statements about the 24 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 25 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 26 the individual’s statements based on a consideration of the entire case record. 27 Step four requires the ALJ to determine whether the individual has the RFC to perform 28 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(a)(4)(iv). PRW means work performed Page 4 of 11 1 either as the individual actually performed it or as it is generally performed in the national 2 economy within the last 15 years. In addition, the work must have lasted long enough for the 3 individual to learn the job and performed an SGA. If the individual has the RFC to perform her 4 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 5 or does not have any PRW, then the analysis proceeds to step five. 6 The fifth and final step requires the ALJ to determine whether the individual can do any 7 other work considering her RFC, age, education, and work experience. 20 C.F.R. 8 § 404.1520(a)(4)(v). If she can do other work, then a finding of not disabled is made. Although 9 the individual generally continues to have the burden of proving disability at this step, a limited 10 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 11 responsible for providing evidence demonstrating that other work exists in significant numbers in 12 the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 13 14 15 16 17 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a). ECF No. 17-1 at 33-46. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 22, 2018, the application date. Id. at 27. At step two, the ALJ concluded that Plaintiff had the following severe impairments: 18 multiple sclerosis (MS), headaches, alcohol and substance abuse disorders, schizophrenia 19 spectrum and other psychotic disorders, somatic symptom disorder (SSD), and oppositional 20 defiance disorder (ODD). Id. at 28. 21 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 22 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 23 Appendix 1. Id. 24 The ALJ then found that Plaintiff has the RFC to perform “light work” with the following 25 limitations: she cannot climb ladders or similar devices. The claimant cannot work in hazardous 26 environments, such as unprotected heights and dangerous machinery. The claimant can 27 frequently, but not constantly, handle and finger. The claimant can focus on, remember, 28 understand, and carry out instructions and maintain appropriate work pace with respect to simple, Page 5 of 11 1 routine, repetitive tasks. She cannot perform tasks requiring more than occasional public contact 2 or more than occasional interaction with coworkers. The claimant cannot perform tasks with a 3 strong production pace element. Id. at 37. At step four, the ALJ determined that Plaintiff could not perform past relevant work as a 4 5 cashier, bartender, kitchen helper or waitress. Id. at 44. At step five, the ALJ considered Plaintiff’s age, education, work experience, and RFC and 6 7 found there are jobs that exist in significant numbers in the national economy that she can 8 perform. Id. at 44–45. Specifically, the ALJ found that Plaintiff can work as a stock checker or 9 retail marker. Id. at 45. The ALJ then concluded that Plaintiff was not under a disability at any 10 time since February 22, 2018. Id. at 46. 11 3. Analysis 12 A. Whether the ALJ erred in finding Dr. Racoma’s opinion not persuasive 13 The ALJ found that Dr. Racoma’s opinion was not persuasive because it was not 14 consistent with the medical evidence. In addition, the ALJ found Dr. Woods’ opinion was 15 consistent with the medical evidence. Given this, and as explained below, this Court finds the 16 ALJ did not need to make any other findings. ECF No. 20, p. 12. Plaintiff asserts that both Dr. Racoma’s opinion and Dr. Woods’ opinion were consistent 17 18 and supported by record; and therefore, the ALJ should have considered other factors (i.e. such as 19 the relationship factors) 3 to determine whether Dr. Racoma’ opinion was persuasive. Id. at 15. 20 The Court agrees with Defendant that the ALJ was not required to articulate any other 21 factors considered because the opinions of Dr. Wood and Dr. Racoma were both equally well- 22 supported, but only Dr. Woods’ opinion was consistent with the record. Given the law only 23 requires the ALJ to consider other factors when two different opinions are equally well-supported 24 and consistent with the record, the ALJ did not err. 25 26 27 28 3 The relationship factors consider the length of the treatment relationship between patient and doctor, the frequency of the examinations and the purpose of the treatment relationship in determining the persuasiveness of the medical opinion. C.F.R. § 416.920c(c)(3). Page 6 of 11 1 The ALJ is required to articulate findings regarding only supportability and consistency 2 with the evidence. 20 C.F.R. § 416.920c(b)(2) (identifying two most important factors, 3 supportability and consistency), (c) (enumerating all factors); Woods v. Kijakazi, 32 F.4th 785, 4 791 (9th Cir. 2022). Woods affirms that the most important factors when evaluating the 5 persuasiveness of medical opinions are “supportability” and “consistency.” Id. (citing 20 C.F.R. § 6 404.1520c(a)). “Supportability means the extent to which a medical source supports the medical 7 opinion by explaining the ‘relevant ... objective medical evidence.’” Id. (citing § 404.1520c(c)(1). 8 “Consistency means the extent to which a medical opinion is ‘consistent ... with the evidence 9 from other medical sources and nonmedical sources in the claim.’” Id. (quoting § 10 11 404.1520c(c)(2)). An ALJ is required to articulate how he considered the other factors, such as the prior 12 relationship between the doctor and patient, only if he finds “that two or more medical opinions 13 or prior administrative medical findings about the same issue are both equally well-supported 14 (paragraph (c)(1) of this section) and consistent with the record (paragraph (c)(2) of this section) 15 but are not exactly the same.” 20 C.F.R. § 416.920c(b)(3). In this instance, the ALJ found that Dr. 16 Woods’ and Dr. Racoma’s opinions were equally well-supported but did not find that they were 17 both consistent. ECF No. 17 at 43-44. 18 The ALJ observed that Dr. Racoma’s findings of severe anxiety and problems with focus 19 and concentration supported the opinion. Id. However, the ALJ noted that the opinion was not 20 consistent with the record as a whole. See 20 C.F.R. § 416.920c(c)(2). For example, the ALJ 21 observed that Dr. Racoma noted Plaintiff had difficulty concentrating and was easily distracted 22 (ECF 17 at 36). However, in her function report, Plaintiff reported being able to count change and 23 use a checkbook and said she finished what she started (Id. at 362, 364). At her examination with 24 Dr. Wood, Plaintiff described her ability to concentrate as “good,” and she was able to complete 25 simple math problems (Id., citing AR 793, 795). Further, the ALJ noted that Dr. Racoma stated 26 Plaintiff experienced impaired impulse control and mood disturbance (Id. at 931). But, the ALJ 27 observed, Plaintiff frequently had normal mental status examinations (Id. at 745, 814, 829, 841, 28 868, 896, 966). Plaintiff reported that she prepared meals, shopped in stores, paid bills, and Page 7 of 11 1 handled a savings account (Id. at 361-62). Importantly, Plaintiff also reported that she worked 2 part time as a bartender (Id. at 798). See Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) 3 (evidence of a plaintiff’s part time work that conflicts with a physician’s opinion is a legitimate 4 reason to reject the opinion). 5 Plaintiff is correct that an ALJ “cannot reject an examining or treating doctor’s opinion as 6 unsupported or inconsistent without providing an explanation supported by substantial evidence.” 7 Wood, 32 F.4th at 792. But here, the ALJ provided an explanation supported by substantial 8 evidence as to why Dr. Racoma’s opinion was not consistent with the medical record. Thus, the 9 ALJ did not err. 10 11 12 B. Whether the ALJ Failed to Account for Plaintiff’s Severe Somatic Symptom Disorder when Articulating Reasons for Rejecting Her Symptom Testimony Plaintiff challenges the ALJ’s symptom analysis only as it relates to her somatic symptom 13 disorder (see ECF No. 20, p. 15-19). Specifically, Plaintiff argues the ALJ had an obligation to 14 consider, when discounting Plaintiff’s testimony concerning the intensity, persistence and 15 limiting effects of her symptoms, whether Plaintiff’s perception of greater symptoms or 16 limitations was explained by the severe somatic symptom disorder. Defendant’s position is that 17 the ALJ demonstrated clear and convincing reasons for discounting some of Plaintiff's statements 18 concerning the intensity, persistence, and limiting effects of those symptoms related to somatic 19 symptom disorder. The Court agrees with Defendant. 20 In deciding whether to admit a claimant's subjective complaints, the ALJ must engage in a 21 two-step analysis. See Garrison v. Colvin, 759 F.3d 995, 1014; Batson v. Comm'r, 359 F.3d 1190, 22 1196 (9th Cir. 2004). First, Plaintiff must produce objective medical evidence of her impairment 23 that could reasonably be expected to produce some degree of the symptom or pain alleged. 24 Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no evidence of 25 malingering, the ALJ may reject the claimant's testimony regarding the severity of her symptoms 26 only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 27 28 An ALJ may reject a claimant’s testimony if there is “conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant’s testimony Page 8 of 11 1 or between her testimony and her conduct, daily activities inconsistent with the alleged 2 symptoms, and testimony from physicians and third parties about the nature, severity and effect 3 of the symptoms about which the claimant complains.” Robert H., Plaintiff, v. Commissioner, 4 Social Security Administration, Defendant., No. 6:22-CV-00565-MC, 2023 WL 5606982, at *3 5 (D. Or. Aug. 30, 2023) (citations and internal quotation marks omitted). Here, the ALJ found that 6 Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged 7 symptoms. ECF No. 17, p. 35. However, the ALJ discounted Plaintiff's statements concerning the 8 intensity, persistence, and limiting effects of those symptoms, noting that the statements were not 9 consistent with medical evidence and other evidence in the record. Id. The ALJ was therefore 10 required to provide specific, clear and convincing reasons for discounting Plaintiff's subjective 11 complaints. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ must make specific 12 findings, sufficiently specific enough to ensure that he did not “arbitrarily discredit” a claimant’s 13 subjective testimony). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The listing for somatic symptom disorder lists as signs and symptoms attributable to it: “pain and other abnormalities of sensation, gastrointestinal symptoms, fatigue, a high level of anxiety about personal health status, abnormal motor movement, pseudoseizures, and pseudoneurological symptoms, such as blindness or deafness.” 20 C.F.R. Part 404, Subpart P, Appendix 1, List 12.07. The ALJ acknowledged that Plaintiff has limitations attributable to these symptoms as assessed in the RFC (ECF No. 17 at 37-8). Particularly, the ALJ acknowledged Plaintiff’s testimony that she experienced anxiety, forgetfulness, migraines, headaches, tremors in her legs and hands, and tingling in her fingers. (Id. at 38, 118, 122-26). However, the ALJ found that the medical evidence showed that Plaintiff’s anxiety improved while she was medicated. (Id. at 40, 749). “Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ additionally found that although her anxiety was measured as a six out of ten by Dr. Wood in Page 9 of 11 1 2018 (ECF No. 17 at 800), in 2019 and 2020, she denied anxiety and depression and was noted to 2 not be suicidal, homicidal or psychotic, nor did she have impaired functioning. (Id. at 41, 960, 3 1015). Further, the ALJ found that her forgetfulness as noted in testing of her long-term memory 4 5 was below average in 2018 as tested by Dr. Wood. (Id. at 41, 800). She reported short-term 6 memory problems and problems with word search and choice in April 2018, but the examiner 7 found she had appropriate judgment and normal memory. (Id. at 40, 735-736). Other psychiatric 8 testing showed normal results including memory and judgment. (Id. at 40-41, 745, 814, 829, 841, 9 88, 890, 966). Therefore, the ALJ correctly concluded that this sign of somatic symptom disorder 10 did not reflect a disabling condition. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) 11 (affirming ALJ’s rejection of claims of disabling mental impairment based on benign mental 12 exam results). 13 Finally, the ALJ considered symptoms with mixed results including psychomotor 14 agitation, numbness in her right side and constant daily headaches. (ECF No. 17 at 39-40). But he 15 also found that other testing or self-reporting of symptoms showed that these results improved, or, 16 despite the symptom, did not result in a disabling physical condition. (Id. at 38-40). The most 17 frequent recurring symptom, headaches, were found to be a severe impairment. (Id. at 34). Thus, 18 the ALJ considered headaches (Id. at 35) in combination with other listed impairments, including 19 somatic symptom disorder, when considering the Step Three requirement that the ALJ determine 20 whether the individual’s impairments or combination of impairments meets or medically equals 21 the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 22 404.1520(a)(4)(iii). (Id. at 35). The ALJ found no impairment or combination of impairments that 23 met one of the listed impairments. Plaintiff has waived objections to the ALJ’s failure to find a 24 listed impairment (particularly 12.07) by not challenging it here. See Bray v. Comm’r, 554 F.3d 25 1219, 1226 (9th Cir. 2009) (citing Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1100 (9th Cir. 26 2007)). 27 28 Page 10 of 11 1 Accordingly, Defendant has demonstrated clear and convincing reasons for discounting 2 some of Plaintiff's statements concerning the intensity, persistence, and limiting effects of those 3 symptoms related to somatic symptom disorder. 4 Looking at the record as a whole, substantial evidence supports the ALJ’s findings as to 5 both of the issues raised by Plaintiff. 6 III. Conclusion 7 8 9 10 11 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reversal or Remand (ECF No. 20) is DENIED. IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm and Opposition to Plaintiff’s Motion for Reversal and/or Remand (ECF Nos. 21, 22) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment in 12 favor of the Commissioner and close this case. 13 DATED: September 27, 2023. 14 15 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 11 of 11
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