Galarse v. Kijakazi, No. 2:2022cv00506 - Document 24 (D. Nev. 2023)
Court Description: ORDER denying 19 Plaintiff's Motion to Remand to Social Security; ORDER granting 21 , 22 Countermotion to Affirm the Agency Decision. IT IS FURTHER ORDERED that 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 9/6/2023. (Copies have been distributed pursuant to the NEF - HAM)
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Galarse v. Kijakazi Doc. 24 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 1 of 11 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Lydia G., 1 5 Case No. 2:22-cv-00506-BNW Plaintiff, 6 v. 7 ORDER re ECF Nos. 19 & 21 Kilolo Kijakazi, Acting Commissioner of Social Security, 8 Defendant. 9 10 This case involves review of an administrative action by the Commissioner of Social 11 12 Security denying Plaintiff Lydia G.’s application for disability insurance benefits and 13 supplemental security under Title II and Title XVI of the Social Security Act, respectively. 2 On 14 March 23, 2022, the parties consented to the case being heard by a magistrate judge in accordance 15 with 28 U.S.C. § 636(c), and this matter was assigned to the undersigned for an order under 28 16 U.S.C. § 636(c). See ECF No. 3. The Court reviewed Plaintiff’s motion for reversal or remand 17 (ECF No. 19), the Commissioner’s cross-motion to affirm and response (ECF Nos. 21, 22), and 18 Plaintiff’s reply (ECF No. 23). For the reasons discussed below, the Court denies Plaintiff’s 19 motion and grants the Commissioner’s cross-motion. 20 // 21 // 22 // 23 // 24 25 26 27 28 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 Although Title II and Title XVI of the Act are governed by a separate set of regulations, the regulations governing disability determinations are substantially the same for both programs. Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For convenience, the Court cites only the regulations governing disability determinations under Title II. 1 Dockets.Justia.com Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 2 of 11 1 I. Background 2 1. Procedural History 3 On August 10, 2018, 3 Plaintiff applied for disability insurance benefits and supplemental 4 security income under Titles II and XVI of the Social Security Act, alleging an onset date of 5 March 1, 2017. ECF No. 16-1 4 at 212–26. Plaintiff’s claim was denied initially and on 6 reconsideration. Id. at 136–39; 142–47. A telephonic hearing was held before Administrative Law Judge (“ALJ”) Ben Willner on 7 8 February 24, 2021. Id. at 43–65. On March 15, 2021, ALJ Willner issued a decision finding that 9 Plaintiff was not disabled. Id. at 21–37. On February 16, 2022, the Appeals Council denied 10 review. Id. at 5–11. On March 22, 2022, Plaintiff commenced this action for judicial review under 11 42 U.S.C. § 405(g). See IFP App. (ECF No. 1). 12 II. Discussion 13 1. Standard of Review 14 Administrative decisions in Social Security disability benefits cases are reviewed under 42 15 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 16 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 17 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 18 obtain a review of such decision by a civil action . . . brought in the district court of the United 19 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 20 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 21 decision of the Commissioner of Social Security, with or without remanding the cause for a 22 rehearing.” 42 U.S.C. § 405(g). The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 23 24 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 25 findings may be set aside if they are based on legal error or not supported by substantial evidence. 26 27 28 The Administrative Law Judge’s decision identifies August 9, 2018 as date that Plaintiff applied for disability insurance benefits and supplemental security income. ECF No. 16-1 at 24. 4 ECF No. 16 refers to the Administrative Record in this matter which, due to COVID-19, was electronically filed. (Notice of Electronic Filing (ECF No. 16)). All citations to the Administrative Record will use the CM/ECF page numbers. 3 Page 2 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 3 of 11 1 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 2 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a 3 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 4 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 5 Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining 6 whether the Commissioner’s findings are supported by substantial evidence, the court “must 7 review the administrative record as a whole, weighing both the evidence that supports and the 8 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 9 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 Under the substantial evidence test, findings must be upheld if supported by inferences 11 reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 12 When the evidence will support more than one rational interpretation, the court must defer to the 13 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 14 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue 15 before the court is not whether the Commissioner could reasonably have reached a different 16 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on 17 the ALJ to make specific findings so that the court does not speculate as to the basis of the 18 findings when determining if the Commissioner’s decision is supported by substantial evidence. 19 Mere cursory findings of fact without explicit statements as to what portions of the evidence were 20 accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 21 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 22 appropriate, should include a statement of subordinate factual foundations on which the ultimate 23 factual conclusions are based.” Id. 24 2. Disability Evaluation Process and the ALJ Decision 25 The individual seeking disability benefits has the initial burden of proving disability. 26 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 27 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 28 determinable physical or mental impairment which can be expected . . . to last for a continuous Page 3 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 4 of 11 1 period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). Moreover, the individual must 2 provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 3 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 4 shifts to the Commissioner to show that the individual can perform other substantial gainful work 5 that exists in the national economy. Reddick, 157 F.3d at 721. 6 The ALJ follows a five-step sequential evaluation process in determining whether an 7 individual is disabled. See 20 C.F.R. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 8 If at any step the ALJ determines that she can make a finding of disability or non-disability, a 9 determination will be made, and no further evaluation is required. See 20 C.F.R. 10 11 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires the ALJ to determine whether the individual is engaged in substantial 12 gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the individual is engaged in SGA, then 13 a finding of not disabled is made. If the individual is not engaged in SGA, then the analysis 14 proceeds to step two. 15 Step two addresses whether the individual has a medically determinable impairment that 16 is severe or a combination of impairments that significantly limits her from performing basic 17 work activities. Id. § 404.1520(a)(4)(ii). If the individual does not have a severe medically 18 determinable impairment or combination of impairments, then a finding of not disabled is made. 19 If the individual has a severe medically determinable impairment or combination of impairments, 20 then the analysis proceeds to step three. 21 Step three requires the ALJ to determine whether the individual’s impairments or 22 combination of impairments meets or medically equals the criteria of an impairment listed in 20 23 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If the individual’s impairment 24 or combination of impairments meets or equals the criteria of a listing and the duration 25 requirement, then a finding of disabled is made. Id. § 404.1520(d). Otherwise, the analysis 26 proceeds to step four. 27 28 However, before moving to step four, the ALJ must first determine the individual’s residual functional capacity (“RFC”), which is a function-by-function assessment of the Page 4 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 5 of 11 1 individual’s ability to do physical and mental work-related activities on a sustained basis despite 2 limitations from impairments. See 20 C.F.R. § 404.1560; see also SSR 96-8p. In making this 3 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 4 which the symptoms can reasonably be accepted as consistent with the objective medical 5 evidence and other evidence. 20 C.F.R. § 404.1545. To the extent that statements about the 6 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 7 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 8 the individual’s statements based on a consideration of the entire case record. 9 Step four requires the ALJ to determine whether the individual has the RFC to perform 10 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(a)(4)(iv). PRW means work performed 11 either as the individual actually performed it or as it is generally performed in the national 12 economy within the last 15 years. In addition, the work must have lasted long enough for the 13 individual to learn the job and performed a SGA. If the individual has the RFC to perform her 14 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 15 or does not have any PRW, then the analysis proceeds to step five. 16 The fifth and final step requires the ALJ to determine whether the individual can do any 17 other work considering her RFC, age, education, and work experience. 20 C.F.R. 18 § 404.1520(a)(4)(v). If she can do other work, then a finding of not disabled is made. Although 19 the individual generally continues to have the burden of proving disability at this step, a limited 20 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 21 responsible for providing evidence demonstrating that other work exists in significant numbers in 22 the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 23 24 25 26 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a) and § 416.920(a). ECF No. 16-1 at 25–37. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 1, 2017, the alleged onset date. Id. at 27. 27 28 Page 5 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 6 of 11 1 At step two, the ALJ concluded that Plaintiff had the following severe impairments: 2 degenerative changes of the left shoulder, knees, and feet; mild left-sided carpal tunnel syndrome; 3 and obesity. Id. 4 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 5 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 6 Appendix 1. Id. at 29. 7 8 9 10 11 12 13 14 Before moving to step four, the ALJ concluded that Plaintiff had the RFC to perform “light work” with the following limitations: [S]he can no more than frequently push and pull hand controls and reach overhead with the dominant left upper extremity. She can no more than frequently handle and finger with the left dominant hand. She can occasionally climb ramps and stairs, must never be required to climb ladders, ropes, or scaffolds, frequently balance, and occasionally stoop, kneel, crouch, crawl. She can only frequently be required to work in conditions of unprotected heights, with moving mechanical parts, with extreme cold, and vibration. Id. at 30. At step four, the ALJ found that Plaintiff can perform past relevant work as a hairdresser 15 supervisor. Id. at 35. The ALJ then concluded that Plaintiff was not under a disability at any time 16 since March 1, 2017. Id. at 36. 17 18 19 20 21 22 3. Analysis A. Whether substantial evidence supports the ALJ’s finding that Plaintiff can perform past relevant work as a hairdresser Plaintiff moves the Court to remand for benefits or, in the alternative, remand for further proceedings on two grounds. ECF No. 19 at 2. First, she argues that the ALJ erred in finding that Plaintiff can perform past relevant work 23 as a hairdresser because “she lacked the ability to perform the standing and walking required of 24 her past relevant work and her other non-relevant work experiences.” Id. at 7–10. The 25 Commissioner disagrees and submits that the ALJ found Plaintiff could not perform her past 26 relevant work as a hairdresser as actually performed but could as generally performed. ECF No. 27 21 at 9–13. 28 Page 6 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 7 of 11 At step four of the sequential evaluation process, the claimant bears the burden of showing 1 2 she can no longer perform her past relevant work “‘either as actually performed or as generally 3 performed in the national economy.’” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 4 1166 (9th Cir. 2008) (quoting Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). 5 Nonetheless, the ALJ has a duty “‘to make the requisite factual findings to support his 6 conclusion.’” Lewis, 281 F.3d at 1083 (quoting Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 7 2001)). This includes making (1) a finding of fact as to the claimant’s RFC, (2) a finding of fact 8 as to the physical and mental demands of the past job/occupation, and (3) a finding of fact that the 9 claimant’s RFC would permit a return to her past job or occupation. Ocegueda v. Colvin, 630 F. 10 App’x 676, 677 (9th Cir. 2015) (citing SSR 82–62, 1982 WL 31386, at *4). Although the 11 claimant’s testimony is the primary source for vocational documentation, the ALJ also may use a 12 vocational expert to determine whether the claimant can perform her past relevant work. Id. 13 (citations omitted). 14 Here, the ALJ relied on both Plaintiff and a vocational expert to make the requisite 15 findings of fact. ECF No. 16-1 at 36. He found that (1) Plaintiff could perform “light” work with 16 some limitations, (2) Plaintiff actually performed her past relevant work as a hairdresser at a 17 “medium exertional level[,]” and (3) the hairdresser position, as generally performed, requires 18 “light, skilled work[.]” Id. He then concluded that Plaintiff could perform her past relevant work 19 as a hairdresser as generally performed (per the Dictionary of Occupational Titles 5) but not as 20 actually performed. Id. Plaintiff does not challenge the ALJ’s RFC finding but argues only that the ALJ failed to 21 22 consider Plaintiff’s past exertional demands as a hairdresser. Plaintiff’s argument is not supported 23 by the record. This is because (1) the ALJ found that Plaintiff actually performed the hairdresser 24 position at a “medium exertional level” and in excess of how the position is generally performed, 25 and (2) Plaintiff cannot perform the hairdresser position as she actually performed it but only as it 26 is generally performed. Id. at 36. 27 28 The Dictionary of Occupational Titles is “the best source for how a job is generally performed.” Pinto, 249 F.3d at 845; see also Ocegueda, 630 F. App’x at 677–78. 5 Page 7 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 8 of 11 To be clear, a “claimant must be able to perform her past relevant work either as actually 1 2 performed or as generally performed in the national economy.” Lewis, 281 F.3d at 1083 3 (emphasis added); see also SR 82-61 (explaining that “if the claimant cannot perform the 4 excessive functional demands and/or job duties actually required in the former job but can 5 perform the functional demands and job duties as generally required by employers throughout the 6 economy, the claimant should be found to be ‘not disabled’”). Thus, Plaintiff’s citation to 7 Ocegueda, 630 F. App’x 676 misses the mark. In Ocegueda, the court found that the ALJ erred 8 by finding, “without explanation,” that the plaintiff could perform her past relevant work as a 9 beautician or hairdresser both as actually and generally performed. Id. at 678. In short, substantial evidence supports the ALJ’s finding that Plaintiff could perform past 10 11 relevant work as generally performed but not as actually performed. Thus, the Court finds no 12 error. 13 B. Whether the ALJ provided specific, clear, and convincing reasons to discount Plaintiff’s pain and symptom testimony 14 15 Next, the parties dispute whether the ALJ provided specific, clear, and convincing reasons 16 in discounting Plaintiff’s subjective symptom testimony. Compare ECF No. 19 at 10–12 with 17 ECF No. 21 at 13–19. 18 In determining whether a claimant’s testimony regarding subjective pain or symptoms is 19 credible, the ALJ engages in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 20 2014). “First, the ALJ must determine whether the claimant has presented objective medical 21 evidence of an underlying impairment which could reasonably be expected to produce the pain or 22 other symptoms alleged.” Id. (citation and quotation omitted). “The claimant is not required to 23 show that her impairment ‘could reasonably be expected to cause the severity of the symptom she 24 has alleged; she need only show that it could reasonably have caused some degree of the 25 symptom.’” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting Lingenfelter v. Astrue, 26 504 F.3d 1028, 1035-36 (9th Cir. 2007)). If the claimant satisfies the first step of the analysis, and 27 there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the 28 severity of their symptoms “only by offering specific, clear and convincing reasons for doing so.” Page 8 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 9 of 11 1 Id. (citation and quotation omitted). Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 2 (citations omitted). General findings are insufficient; rather, the ALJ must identify what symptom 3 claims are being discounted and what evidence undermines these claims. Id. (quoting Lester v. 4 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 5 (requiring the ALJ to sufficiently explain why they discounted the claimant’s symptom claims). 6 “The clear and convincing [evidence] standard is the most demanding required in Social Security 7 cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 8 924 (9th Cir. 2002)). That said, if the ALJ’s credibility finding is supported by substantial 9 evidence in the record, the Court may not engage in second-guessing. Thomas, 278 F.3d at 959. 10 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to cause the 11 alleged symptoms. ECF No. 16-1 at 30. However, the ALJ found Plaintiff’s “statements 12 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 13 consistent with the medical evidence and other evidence in the record for the reasons explained in 14 this decision.” Id. The ALJ cited to a few reasons, including Plaintiff’s activities of daily living, 15 conservative treatment, noncompliance with treatment, and inconsistencies between her testimony 16 and conduct, to discount her symptom testimony. Id. at 30–31. 17 As an initial matter, Plaintiff challenges only one of the ALJ’s reasons for discounting her 18 pain and symptom testimony—Plaintiff’s activities of daily living. ECF No. 19 at 12. Thus, the 19 Court finds that Plaintiff has waived any argument challenging the ALJ’s other cited reasons. 20 See Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) 21 (citing Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)) (explaining that 22 courts cannot “manufacture arguments” for litigants and will “review only issues which are 23 argued specifically and distinctly in a party’s opening brief”). 24 Although the ALJ may have erred in discounting Plaintiff’s pain and symptom testimony 25 because of her activities of daily living, the Court finds any potential error harmless. This is 26 because the ALJ provided at least one specific, clear, and convincing reason, supported by 27 substantial evidence, to discount Plaintiff’s subjective symptom testimony. See Batson, 359 F.3d 28 at 1197 (holding that where one of an ALJ’s several reasons supporting an adverse credibility Page 9 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 10 of 11 1 finding is held invalid, the error is harmless if it “does not negate the validity of the ALJ’s 2 ultimate conclusion that [the claimant’s testimony] was not credible”); see also Carmickle, 533 3 F.3d at 1163 (upholding an adverse credibility finding where the ALJ provided four reasons to 4 discredit the claimant, two of which were invalid). An ALJ may reject a claimant’s testimony if there is “conflicting medical evidence, 5 6 effective medical treatment, medical noncompliance, inconsistencies in the claimant’s testimony 7 or between her testimony and her conduct, daily activities inconsistent with the alleged 8 symptoms, and testimony from physicians and third parties about the nature, severity and effect 9 of the symptoms about which the claimant complains.” Robert H., Plaintiff, v. Commissioner, 10 Social Security Administration, Defendant., No. 6:22-CV-00565-MC, 2023 WL 5606982, at *3 11 (D. Or. Aug. 30, 2023) (citations and internal quotation marks omitted). As noted above, one of 12 the ALJ’s reasons for discrediting Plaintiff’s testimony is inconsistencies between her testimony 13 and conduct. ECF No. 16-1 at 31–32. The record supports the ALJ’s finding. For example, and as 14 the ALJ points out, at Plaintiff’s consultative examination, she “initially reported no pain, but 15 later reported pain with every movement.” Id. at 72. In short, it is Plaintiff, as the party attacking the Agency’s determination, who bears the 16 17 burden of demonstrating harmful error, and the Court may not reverse an ALJ’s decision based on 18 harmless error. Miller v. Kijakazi, No. 2:22-CV-00355-EJY, 2023 WL 1525429, at *11 (D. Nev. 19 Feb. 3, 2023). Because the ALJ found Plaintiff not fully credible because of inconsistencies in the 20 record, and this finding is supported by substantial evidence, the Court must “defer to the ALJ’s 21 conclusion.” Batson, 359 F.3d at 1198 (internal citation omitted). Finally, the Court need not 22 reach the other reasons cited by the ALJ in discrediting Plaintiff’s pain and symptom testimony 23 because, as already discussed, any error would be harmless. See Batson, 359 F.3d at 1197; see 24 also Carmickle, 533 F.3d at 1163. 25 IV. 26 27 Conclusion IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reversal or Remand (ECF No. 19) is DENIED. 28 Page 10 of 11 Case 2:22-cv-00506-BNW Document 24 Filed 09/06/23 Page 11 of 11 1 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm and 2 Response to Plaintiff’s Motion for Reversal and/or Remand (ECF Nos. 21, 22) is GRANTED. 3 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment in 4 favor of the Commissioner and close this case. 5 6 7 8 DATED: September 6, 2023. BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 11 of 11
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