Blackmon v. Berryhill, No. 3:2017cv01669 - Document 18 (S.D. Cal. 2018)
Court Description: ORDER denying Plaintiff's 12 Motion for Summary Judgment; granting 13 Defendant's Motion for Summary Judgment. It is ordered that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. Signed by Judge Cynthia Bashant on 6/5/2018. (jah)
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Blackmon v. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN DAVID BLACKMON, Case No: 17-cv-01669-BAS (RNB) Plaintiff, 12 13 v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 ORDER: (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF No. 12); AND Defendant. (2) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 13) 17 18 19 20 On August 8, 2017, Plaintiff Brian David Blackmon filed a Complaint pursuant to 21 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 22 Security denying his application for Supplemental Security Income (“SSI”). (ECF No. 1.) 23 Now pending before the Court and ready for decision are the parties’ cross-motions 24 for summary judgment. The Court finds these motions suitable for determination on the 25 papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 26 For the reasons set forth herein, Plaintiff’s motion for summary judgment is DENIED and 27 the Commissioner’s cross-motion for summary judgment is GRANTED. 28 1 17cv1669 Dockets.Justia.com 1 PROCEDURAL BACKGROUND 2 On March 7, 2014, Plaintiff protectively filed an application for SSI under Title XVI 3 of the Social Security Act, alleging disability beginning June 1, 2013. (Certified 4 Administrative Record (“AR”) 150-55.)1 After his application was denied initially and 5 upon reconsideration (AR 91-94, 98-103), Plaintiff requested an administrative hearing 6 before an administrative law judge (“ALJ”). (AR 104-06.) An administrative hearing was 7 held on May 3, 3016. Plaintiff appeared at the hearing with counsel, and testimony was 8 taken from him and a vocational expert (“VE”). (AR 28-61.) 9 As reflected in his May 25, 2016 hearing decision, the ALJ found that Plaintiff had 10 not been under a disability, as defined in the Social Security Act, since the date his 11 application was filed. (AR 13-23.) The ALJ’s decision became the final decision of the 12 Commissioner on June 16, 2017, when the Appeals Council denied Plaintiff’s request for 13 review. (AR 3-5.) This timely civil action followed. 14 15 SUMMARY OF THE ALJ’S FINDINGS 16 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 17 evaluation process. See 20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had 18 not engaged in substantial gainful activity since March 7, 2014, his alleged onset date. (AR 19 15.) 20 At step two, the ALJ found that Plaintiff had the following severe impairment: 21 hearing impairment. (AR 15.) The ALJ also found that Plaintiff’s medically determinable 22 mental impairments of affective disorder and substance abuse disorder, considered singly 23 and in combination, did not cause more than minimal limitation in his ability to perform 24 basic mental work activities and were therefore “nonsevere.” (AR 15.) 25 26 27 1 28 At the administrative hearing, Plaintiff amended the alleged onset date of disability from June 1, 2013, to March 7, 2014, the date his application was filed. (AR 32, 146.) 2 17cv1669 1 At step three, the ALJ found that Plaintiff did not have an impairment or combination 2 of impairments that met or medically equaled one of the impairments listed in the 3 Commissioner’s Listing of Impairments. (AR 16.) 4 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 5 to perform a full range of work at all exertional levels, but with the following nonexertional 6 limitations: avoiding all exposure to hazards such as moving machinery and unprotected 7 heights; avoiding work situations requiring acute, precise, or detailed hearing; limited to 8 moderate noise environments; limited to no interaction with the general public; and 9 “limited to occasional non-personal, non-social work-related interaction with coworkers 10 and supervisors involving no more than a brief exchange of information or hand-off of 11 product.” (AR 16.) 12 13 At step four, the ALJ found that Plaintiff was unable to perform any of his past relevant work as a bakery worker. (AR 21-22.) 14 The ALJ then proceeded to step five of the sequential evaluation process. As of the 15 alleged onset date, the ALJ classified Plaintiff as a younger individual with a high school 16 education for whom transferability of skills was immaterial. (AR 22.) Based on the VE’s 17 testimony that a hypothetical person with Plaintiff’s vocational profile could perform the 18 requirements of occupations that existed in significant numbers in the national economy 19 (i.e., textile assembler, lens inserter, and final assembler), the ALJ found that Plaintiff was 20 not disabled. (AR 22-23.) 21 22 23 24 25 26 27 28 PLAINTIFF’S CLAIM OF ERROR Plaintiff’s claim of error is based on footnote 4 of the ALJ’s decision, which reads as follows: The claimant’s representative suggested the possibility of a second (i.e., posthearing) psychological consultative examination. The undersigned has, however, determined that a second such examination is not necessary for a full adjudication of this matter. Among other things, the psychological record currently of record does not indicate the presence of a severe mental 3 17cv1669 1 2 3 4 5 6 7 8 impairment, and a one-time snap shot at a discrete point in time that a posthearing assessment might provide would, in the context of the record, be insufficient to establish any ongoing functional limitations longitudinally over any 12-month basis. Furthermore, the claimant was quite articulate at the hearing, [and] did not appear to have any difficulty interacting with either the undersigned or counsel. Finally, even if a post-hearing examination were to suggest the possibility of some level of mental impairment, the impartial vocational expert’s testimony establishes that even if the claimant had a moderate level of limitations (i.e., were limited to simple, routine, repetitive tasks, to no interaction with the public and to no more than occasional, superficial interaction with co-workers and supervisors), substantial jobs in the national economy would still exist. 9 10 (AR 21 n.4.) 11 As best the Court can glean from Plaintiff’s contentions, Plaintiff is claiming that, 12 based on the last sentence of footnote 4, the Court should find that the ALJ erred in relying 13 on the VE’s administrative hearing testimony at step five of the Commissioner’s sequential 14 evaluation process. According to Plaintiff, the last sentence of footnote 4 indicates that the 15 ALJ deemed Plaintiff’s limitation to “occasional non-personal, non-social, work-related 16 interaction with coworkers and supervisors involving no more than a brief exchange of 17 information or hand-off of product” as the functional equivalent of a limitation to “no more 18 than occasional, superficial interaction with co-workers and supervisors.” Citing Social 19 Security Ruling (“SSR”) 85-15, Plaintiff contends that this limitation meant that Plaintiff 20 was incapable of accepting instructions and responding appropriately to criticism from 21 supervisors and therefore warranted either a finding of disability or an explanation by the 22 ALJ why the limitation to a “brief exchange of information or hand-off of product” did not 23 necessarily exclude responding appropriately to criticism from supervisors. (See ECF No. 24 12-1 at 5-7.) 25 26 STANDARD OF REVIEW 27 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 28 determine whether the Commissioner’s findings are supported by substantial evidence and 4 17cv1669 1 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 2 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 3 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 4 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 5 “such relevant evidence as a reasonable mind might accept as adequate to support a 6 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 7 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 8 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 9 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 10 (9th Cir. 1984). 11 12 DISCUSSION 13 Preliminarily, the Court will address the Commissioner’s contention that Plaintiff 14 waived this claim of error by not raising it at the administrative hearing. (See ECF No. 13- 15 1 at 3-4.) The Court disagrees. Plaintiff was alleging that he suffered from mental 16 impairments. The ALJ found that Plaintiff did suffer from medically determinable mental 17 impairments. At step two of the Commissioner’s sequential evaluation process, it was 18 incumbent on the ALJ to determine whether Plaintiff’s medically determinable 19 impairments qualified as “severe.” 20 According to the Commissioner’s regulations, an impairment is not severe if it does 21 not significantly limit the claimant’s physical or mental ability to do basic work activities. 22 See 20 C.F.R. §§ 416.920(c), 416.922(a). Basic work activities are “abilities and aptitudes 23 necessary to do most jobs,” including mental activities such as “understanding, carrying 24 out, and remembering simple instructions; use of judgment; responding appropriately to 25 supervision, co-workers, and usual work situations; and dealing with changes in a 26 routine work setting.” See 20 C.F.R. § 416.922(b) (emphasis added). Thus, Plaintiff was 27 entitled to presume that the ALJ would consider Plaintiff’s ability to respond appropriately 28 to supervision, co-workers, and usual work situations in making his step two determination 5 17cv1669 1 with respect to Plaintiff’s alleged mental impairments. And, as Plaintiff has pointed out, 2 there is authority for the proposition that the Commissioner considers the ability to accept 3 instructions and respond appropriately to criticism from supervisors a mental ability critical 4 for performing unskilled work. See DI 25020.010 ¶ B.3.k of the Commissioner’s Programs 5 Operations Manual (“POMS”). 6 Moreover, a finding that the failure of Plaintiff’s counsel to challenge the VE’s 7 testimony during the administrative hearing resulted in a forfeiture of his step five claim 8 could not be reconciled with well-established authority that Social Security proceedings 9 are inquisitorial rather than adversarial in nature; that ALJs have a special duty to develop 10 the record even when claimants are represented by counsel; and that ALJs have an 11 affirmative duty to resolve apparent conflicts raised by a VE’s testimony. See, e.g., Sims 12 v. Apfel, 530 U.S. 103, 111-12 (2000) (noting that Social Security proceedings are informal 13 and nonadversarial, and holding that claimants need not raise specific issues with the 14 Appeals Council before seeking judicial review on those issues); Brown v. Heckler, 713 15 F.2d 441, 443 (9th Cir. 1983) (providing an ALJ has a special duty to fully and fairly 16 develop the record even when the claimant is represented by counsel); see also Overman 17 v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (concluding claimant’s failure to object to the 18 VE’s testimony at the hearing did not forfeit step five issue because SSR 00-4p imposes an 19 “affirmative duty” of inquiry on the ALJ); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th 20 Cir. 2005) (same because claimants “need not preserve issues in the proceedings before the 21 Commissioner or her delegates”) (citing Sims, 530 U.S. 103). 22 Finally, the Commissioner’s forfeiture argument is even less compelling here 23 because this case involves an alleged error at step five of the Commissioner’s sequential 24 evaluation process, where the burden lies with the Commissioner rather than with Plaintiff. 25 See Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir. 1999) (noting that the Commissioner 26 bears the burden at step five and commenting, “To allow an ALJ to elicit and rely on 27 summary conclusions given by a VE, in the absence of contrary testimony elicited by the 28 claimant through cross-examination, would amount to shifting the burden to produce and 6 17cv1669 1 develop vocational evidence back to the claimant.”); see also Hackett, 395 F.3d at 1175 2 (noting that SSR 00-4p “essentially codifies Haddock”). 3 However, turning to the merits of Plaintiff’s claim of error, the Court finds Plaintiff’s 4 arguments unpersuasive. First, while the POMS section cited above describes the ability 5 to accept instructions and respond appropriately to criticism as a mental ability critical for 6 performing unskilled work, “POMS constitutes an agency interpretation that does not 7 impose judicially enforceable duties on either this court or the ALJ.” Lockwood v. Comm’r, 8 616 F.3d 1068, 1073 (9th Cir. 2010). Thus, the ALJ was not required to make a specific 9 finding about Plaintiff’s ability to accept instructions and respond appropriately to criticism 10 from supervisors. Moreover, if Plaintiff lacked the ability to accept instructions and 11 respond appropriately to criticism from supervisors, it would have followed that Plaintiff 12 lacked the ability to respond appropriately to supervision, co-workers, and usual work 13 situations, which would have warranted a finding that Plaintiff suffered from a severe 14 mental impairment, and Plaintiff is not even challenging the ALJ’s nonseverity finding 15 with respect to Plaintiff’s alleged mental impairments. 16 Further, in arriving at his RFC determination, the ALJ discussed at length Plaintiff’s 17 history of mental health treatment and weighed the opinions of the consultative examiner 18 and the State agency reviewers. (See AR 18-21.) He afforded “great weight” to the 19 findings of the consultative psychiatric examiner that Plaintiff had no mental limitations. 20 (See AR 21.) In addition, although Plaintiff argues his limitation concerning work-related 21 interaction means that he is incapable of accepting instructions and responding 22 appropriately to criticism from supervisors, the VE’s testimony supports the opposite 23 conclusion. The VE testified that a hypothetical person with the ALJ’s imposed limitation 24 of “occasional non-personal, non-social, work-related interaction with coworkers and 25 supervisors involving no more than a brief exchange of information or hand-off of product” 26 could perform the jobs of a textile assembler, lens inserter, and final assembler. 27 Finally, even if, as Plaintiff is postulating, the ALJ was deeming a limitation to 28 “occasional, superficial interaction with coworkers and supervisors” as functionally 7 17cv1669 1 equivalent to a limitation to “occasional non-personal, non-social, work-related interaction 2 with coworkers and supervisors involving no more than a brief exchange of information or 3 hand-off of product” in the last sentence of footnote 4, Plaintiff’s reliance on SSR 85-15 in 4 support of his claim of error is misplaced for two reasons. First, a limitation to superficial 5 interaction with co-workers and minimal interaction with supervisors does not necessarily 6 constitute a substantial loss of ability to respond appropriately to supervision, co-workers, 7 and usual work situations so as to necessitate a finding of disability under SSR 85-15. See 8 Walsh v. Barnhart, No. CV-15-02466-PHX-GMS, 2017 WL 1130366, at *3 (D. Ariz. Mar. 9 27, 2017). Here, the most natural reading of the last sentence of footnote 4, when 10 considered in the context of the entirety of footnote 4 as well as the ALJ’s whole discussion 11 of Plaintiff’s RFC, is that Plaintiff retains the ability to respond appropriately in 12 interactions with co-workers and supervisors, so long as those interactions are, by the 13 nature of a given job, occasional and brief. Second, as the Commissioner points out, the 14 section of SSR 85-15 on which Plaintiff is relying in any event has no applicability here 15 since Plaintiff’s functional limitations stem from a physical impairment as opposed to 16 solely a mental impairment. See Sandgathe v. Chater, 108 F.3d 978, 980–81 (9th Cir. 17 1997). 18 19 CONCLUSION 20 For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED, 21 the Commissioner’s cross-motion for summary judgment is GRANTED, and it is hereby 22 ORDERED that Judgment be entered affirming the decision of the Commissioner and 23 dismissing this action with prejudice. 24 IT IS SO ORDERED. 25 26 DATED: June 5, 2018 27 28 8 17cv1669
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