Jackson v. Commissioner Of Social Security, No. 2:2022cv01283 - Document 16 (D. Nev. 2023)
Court Description: ORDER denying 12 Motion to Remand to Social Security; ORDER granting 13 Countermotion to Affirm the Agency Decision. Signed by Magistrate Judge Nancy J. Koppe on 2/14/2023. (Copies have been distributed pursuant to the NEF - HAM)
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Jackson v. Commissioner Of Social Security Doc. 16 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 1 of 10 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 MARY MARGARET JACKSON, 7 Case No. 2:22-cv-01283-NJK Plaintiff, 8 v. 9 KILOLO KIJAKAZI, 10 11 ORDER Defendants. This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 13 pursuant to Title II of the Social Security Act. Currently before the Court is Plaintiff’s motion to 14 reverse or remand. Docket No. 12. The Commissioner filed a response and cross-motion to affirm. 15 Docket Nos. 13, 14. Plaintiff filed a reply to the Commissioner’s response. Docket No. 15. 16 I. STANDARDS 17 A. 18 The standard for determining disability is whether a social security claimant has an Disability Evaluation Process 19 “inability to engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected to last for a continuous period of not less 21 than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That determination 22 is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 23 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses whether the claimant 24 is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 1 The 25 second step addresses whether the claimant has a medically determinable impairment that is severe 26 or a combination of impairments that significantly limits basic work activities. 20 C.F.R. §§ 27 1 The five-step process is largely the same for both Title II and Title XVI claims. For a Title 28 II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 Dockets.Justia.com Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 2 of 10 1 404.1520(c), 416.920(c). The third step addresses whether the claimant’s impairments or 2 combination of impairments meet or medically equal the criteria of an impairment listed in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 4 416.920(d), 416.925, 416.926. There is then a determination of the claimant’s residual functional 5 capacity (“RFC”), which assesses the claimant’s ability to do physical and mental work-related 6 activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses whether the claimant 7 has the residual functional capacity to perform past relevant work. 20 C.F.R. §§ 404.1520(f), 8 416.920(f). The fifth step addresses whether the claimant is able to do other work considering the 9 residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 10 416.920(g). 11 B. 12 After exhausting the administrative process, a claimant may seek judicial review of a Judicial Review 13 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 14 denying benefits if the proper legal standard was applied and there is substantial evidence in the 15 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 16 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 17 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___ 18 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 19 high.” Id. 20 II. BACKGROUND 21 A. 22 On May 22, 2020, Plaintiff protectively filed an application for Social Security Disability Procedural History 23 Insurance benefits pursuant to Title II of the Social Security Act. Administrative Record (“A.R.”) 24 77-78. Plaintiff alleged a disability starting October 13, 2019. A.R. 204. Plaintiff’s initial 25 application was denied on February 11, 2021. A.R. 77. She then filed a request for 26 reconsideration, A.R. 111, which was denied, A.R. 88. On September 1, 2021, Plaintiff requested 27 a hearing before an Administrative Law Judge (“ALJ”) regarding her benefits determination. A.R. 28 125-26. ALJ Cynthia Hoover held a hearing on December 14, 2021. A.R. 52-75. On March 15, 2 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 3 of 10 1 2022, the ALJ issued a decision denying Plaintiff benefits. A.R. 25-43. Plaintiff subsequently 2 filed a request for review by the Appeals Council. A.R. 201-03. On June 9, 2022, the Appeals 3 Council denied Plaintiff’s request to review the ALJ’s decision, A.R. 1-3, making it the final 4 decision of the Commissioner. See 42 U.S.C. § 405(g). The instant case was filed on August 11, 5 2022. Docket No. 1. 6 B. 7 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 The Decision Below 8 C.F.R. § 416.920. A.R. 25-43. The ALJ first found that Plaintiff meets the insured status 9 requirements through December 31, 2024. A.R. 27. At step one, the ALJ found that Plaintiff had 10 not engaged in substantial gainful activity since October 13, 2019. Id. At step two, the ALJ found 11 that Plaintiff has the following severe impairments: disorders of the skeletal spine, anxiety, 12 migraine headaches, depression, and trauma- and stressor-related disorder. A.R. 27-28. At step 13 three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that 14 meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 15 Subpart P, Appendix 1. A.R. 28-30. The ALJ found that Plaintiff has the residual functional 16 capacity to perform light work as defined by 20 C.F.R. § 404.1567(b) except that she can: (1) lift 17 and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for six 18 hours and sit for six hours in an eight-hour workday; (3) frequently climb ramps and stairs and 19 occasionally climb ladders, ropes, and scaffolds; (4) frequently stoop, kneel, and crouch and 20 occasionally crawl; (5) frequently reach overhead bilaterally; (6) understand, remember, and carry 21 out simple tasks with concentration, persistence, and pace for such, characteristic of unskilled 22 occupations; and (7) must avoid exposure to extreme temperatures, wetness, loud noises, vibration, 23 and hazards such as unprotected heights and dangerous moving machinery. A.R. 30-41. At step 24 four, the ALJ found that Plaintiff was unable to perform her past relevant work as a business 25 operations manager. A.R. 41. At step five, the ALJ found that jobs exist in significant numbers 26 in the national economy that Plaintiff can perform, based on Plaintiff’s age, education, work 27 experience, and residual functional capacity. A.R. 42. The ALJ considered the Medical 28 Vocational Rules, which provide a framework for finding Plaintiff disabled or not. In addition to 3 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 4 of 10 1 considering the Medical Vocational Rules, the ALJ took testimony from a vocational expert that 2 an individual with the same residual functional capacity and vocational factors as Plaintiff could 3 perform work as a mail clerk, assembler of small products, or bench assembler. A.R. 42. In doing 4 so, the ALJ defined Plaintiff as an individual closely approaching advanced age. A.R. 41. The 5 ALJ found that Plaintiff has at least a high school education and further found the transferability 6 of job skills to be immaterial. A.R. 41-42. Based on these findings, the ALJ found Plaintiff not 7 disabled from October 13, 2019, through March 15, 2022. A.R. 43. 8 III. ANALYSIS 9 Plaintiff submits that the ALJ failed to support her evaluation of the mental and physical 10 health opinions in the record with substantial evidence. Docket No. 12 at 11-15. 11 When evaluating medical evidence, an ALJ cannot “defer or give any specific evidentiary 12 weight, including controlling weight, to any medical opinion(s) or prior administrative medical 13 finding(s).” 20 C.F.R § 404.1520c(a). The ALJ must “articulate how [she] considered the medical 14 opinions and prior administrative medical findings” based on certain specified factors. Id. The 15 most important factors are supportability and consistency, which the ALJ must address. 20 C.F.R. 16 § 404.1520c(b). “Supportability means the extent to which a medical source supports the medical 17 opinion by explaining the ‘relevant ... objective medical evidence.’ Consistency means the extent 18 to which a medical opinion is ‘consistent ... with the evidence from other medical sources and 19 nonmedical sources in the claim.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) 20 (quoting 20 C.F.R. §§ 404.1520c(c)(1) & (c)(2)). An ALJ may, but is not required to, address the 21 remaining provided factors. 20 C.F.R. § 404.1520c(b). 22 Reviewing courts must affirm an ALJ’s evaluation of evidence in the record if it is 23 supported by substantial evidence. See Woods, 32 F.4th at 787, 793. When determining whether 24 a decision is supported by substantial evidence, courts “look[] to all the pages of the ALJ’s 25 decision.” Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022); see also Kennedy v. Colvin, 26 738 F.3d 1172, 1178 (9th Cir. 2013) (noting that Ninth Circuit case law “simply requires an ALJ 27 to discuss and evaluate the evidence that supports his or her conclusion; it does not specify that 28 the ALJ must do so under the heading ‘Findings’” (internal quotation omitted)). “Where evidence 4 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 5 of 10 1 is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be 2 upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (quoting Burch v. Barnhart, 400 3 F.3d 676, 679 (9th Cir. 2005)). Further, when “the evidence is susceptible to more than one 4 rational interpretation, this [C]ourt must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Khan v. Saul, 855 Fed. App’x 343, 345 (9th Cir. 6 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). See also Magallanes v. 7 Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a reviewing court, we are not deprived of our 8 faculties for drawing specific and legitimate inferences from the ALJ's opinion”). 9 A. 10 Drs. Jack Araza, Ph.D. and Marisa Hendron, Ph.D. Plaintiff submits that the ALJ’s evaluation of the prior administrative medical findings of 11 Drs. Araza and Hendron fails to include a sufficient supportability and consistency analysis as 12 required by 20 C.F.R. § 404.1520c. Docket No. 12 at 11-13. Specifically, Plaintiff submits that 13 the ALJ’s RFC determination did not exactly track the recommendations of Drs. Araza and 14 Hendron, and the ALJ did not properly consider certain evidence in the record. 2 Id. The 15 Commissioner responds that the RFC determination does not materially differ from Drs. Araza’s 16 and Hendron’s recommendations and that the ALJ properly considered all evidence in the record. 17 Docket No. 14 at 6-11. 18 Plaintiff submits that the ALJ’s supportability and consistency analysis of Drs. Araza’s and 19 Hendron’s findings is insufficient because she fails to include an RFC limitation addressing the 20 21 22 23 24 25 26 27 28 2 Plaintiff also submits that the ALJ erred in the jobs she determined Plaintiff was capable of performing at Step 5. Docket No. 12 at 12. The ALJ found Plaintiff capable of performing two jobs at GED Reasoning Level 2 and one job at GED Reasoning Level 3. A.R. 42. Plaintiff’s RFC limits her to “simple” jobs. A.R. 30. The Ninth Circuit has observed that an RFC limitation to “simple” jobs is consistent with the work performed at GED Reasoning Level 2 jobs. Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1004 n.6 (9th Cir. 2015) (collecting cases). To the extent the job requiring a GED Reasoning Level 3 exceeds Plaintiff’s RFC limitations, the ALJ’s consideration of such a job is harmless because she found Plaintiff is still capable of performing a significant number of jobs existing in the national economy. Cf. Gavilar v. Colvin, 740 F.3d 519, 528-29 (9th Cir. 2014) (finding 25,000 available jobs constituted a significant number of jobs existing in the national economy). See also Tommasetti v. Astrue, 533 F.3d 1035, 1042-43 (9th Cir. 2008) (holding that an ALJ’s conclusion that a claimant could perform past work exceeding the limitations in the claimant’s RFC was harmless error because the ALJ also found that the claimant could perform other jobs that were consistent with the RFC and existing in significant numbers in the national economy). 5 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 6 of 10 1 detail of work Plaintiff is able to do. Docket No. 12 at 12. However, in crafting the RFC, the ALJ 2 concluded that Plaintiff can “understand, remember, and carry out simple tasks with concentration, 3 persistence, and pace for such, characteristic of unskilled occupations.” A.R. 30. This accords 4 with the doctors’ findings that Plaintiff can sustain simple work. 3 A.R. 85-86, 97-98. Moreover, 5 a review of the ALJ’s opinion shows that she thoroughly considered the supportability and 6 consistency of the doctors’ findings. For example, the ALJ noted that, although Plaintiff had been 7 to the emergency room twice for anxiety issues in the spring of 2021, her mental health treatment 8 had otherwise been routine and conservative. A.R. 37. She further noted that Plaintiff reported 9 her anxiety was improving in August 2021. A.R. 38 (citing A.R. 1032). In evaluating Drs. Araza’s 10 and Hendron’s findings, the ALJ also considered Dr. Mark Short’s observations of Plaintiff. A.R. 11 38 (citing A.R. 734-36). The ALJ noted that Plaintiff’s cognitive abilities appeared more intact 12 during assessments by various treating psychiatrists and therapists than they did during consultive 13 examiner Dr. Paul Nelson’s evaluation. A.R. 38 (citing A.R. 400, 477, 529, 563, 589, 657, 768, 14 812, 892, 1032, 1088-89, 1189). 15 Plaintiff further submits that the ALJ erred by not considering Plaintiff’s emergency room 16 visits or how consistent Drs. Araza’s and Hendron’s findings are with Dr. Short’s opinion. Docket 17 No. 12 at 13. However, as discussed above, the ALJ did consider Plaintiff’s emergency room 18 visits. Similarly, the ALJ also considered how consistent Drs. Araza’s and Hendron’s findings are 19 with Dr. Short’s opinion. Moreover, to the extent Drs. Araza and Hendron discussed Dr. Short’s 20 opinion, they found it inconsistent with other evidence in the record. A.R. 82, 94. The ALJ 21 22 3 It is not immediately apparent to the Court how an RFC being inconsistent with a medical opinion shows that the medical opinion is unsupported by relevant explanations and inconsistent 23 with other evidence in the record. To the extent that an RFC is inconsistent with the medical evidence in the record, that issue would seemingly be more properly raised as a challenge to 24 whether the RFC itself is supported by substantial evidence. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1100-1105 (9th Cir. 1999). 25 Additionally, although medical professionals may opine on whether they believe a claimant 26 is disabled, the RFC determination is an administrative assessment reserved solely to the Commissioner. Social Security Ruling 96-8p, 1996 WL 374184, *2 & n.4. The residual functional 27 capacity determination does not need to copy the exact opinion of any particular doctor; rather, “the ALJ is responsible for translating and incorporating clinical findings into a succinct” residual 28 functional capacity. Rounds, 807 F.3d at 1005-06. 6 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 7 of 10 1 evaluated Drs. Araza’s and Hendron’s findings considering the whole record and her RFC 2 determination accords with their recommendations. The Court, therefore, finds that the ALJ’s 3 evaluation of Drs. Araza’s and Hendron’s findings is supported by substantial evidence. 4 B. Dr. Mark Short, Psy.D. 5 Plaintiff submits that the ALJ failed to sufficiently explain why she found Dr. Mark Short’s 6 medical opinion only partially persuasive. Docket No. 12 at 13-14. The ALJ found “Dr. Short’s 7 opinion regarding the limitation to understanding, remembering, and carrying simple instructions 8 persuasive.” A.R. 40. However, she found that his “other opinions are internally inconsistent and 9 not consistent with his own exam” of Plaintiff. Id. Plaintiff submits that the ALJ did not offer a 10 sufficient supportability and consistency analysis for her evaluation of Dr. Short’s “other 11 opinions.” Docket No. 12 at 13-14. The Commissioner responds that the ALJ properly considered 12 supportability and consistency in her evaluation of the entirety Dr. Short’s medical opinion. 13 Docket No. 14 at 11-13. 14 Plaintiff submits that Dr. Short’s other opinions consist of his opinions regarding 15 limitations in detailed tasks and interpersonal interactions. Docket Nos. 12 at 14, 15 at 2. The 16 ALJ found “Dr. Short’s opinion regarding the limitation to … carrying simple instructions 17 persuasive.” A.R. 40 (emphasis added). The ALJ even incorporated this finding into the RFC 18 determination, concluding Plaintiff only had the ability to “understand, remember, and carry out 19 simple tasks with concentration, persistence, and pace for such, characteristic of unskilled 20 occupations.” A.R. 30. The ALJ’s limitation to simple tasks characteristic of unskilled 21 occupations accords with Dr. Short’s observation that Plaintiff “appears to retain sufficient 22 cognitive resources to sustain simple employment.” A.R. 631. Contrary to Plaintiff’s assertion, 23 the ALJ’s RFC limitation to simple tasks shows that she found Dr. Short’s limitation excluding 24 detailed tasks persuasive. See Khan, 855 Fed. App’x at 345; Magallanes, 881 F.2d at 755. The 25 remaining issue on which Dr. Short opined was Plaintiff’s ability to interact with others, see A.R. 26 630. The Court, therefore, construes Dr. Short’s “other opinions” that the ALJ found unpersuasive 27 to be his opinions regarding Plaintiff’s ability to interact with others. 28 7 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 8 of 10 1 Dr. Short observed that Plaintiff “would appear to have mild difficulty interacting with 2 supervisors, peers, and the public.” A.R. 630. However, he also noted that Plaintiff “would have 3 significant difficulty responding appropriately to work pressure in a work setting in coordination 4 with and in close proximity to others without conflict.” Id. Despite the apparent inconsistency 5 between these two observations, Dr. Short at no point reconciles this discrepancy. The Court, 6 therefore, finds that the ALJ’s evaluation of Dr. Short’s opinion is supported by substantial 7 evidence. 8 C. Dr. Paul Nelson, M.D. 9 Plaintiff submits that “[t]he ALJ’s evaluation of Dr. Nelson’s opinion is materially flawed, 10 undermining the validity of its conclusion.” Docket No. 12 at 14. Specifically, Plaintiff submits 11 that the ALJ incorrectly interpreted the limitations recommended by Dr. Nelson and only offered 12 a “recitation of data” to support her RFC determination. Id. at 14-15. Plaintiff further submits 13 that the ALJ erred in valuing the medical opinions of Drs. Susan Riberio, M.D. and Dominick 14 Addonizio, M.D. because they did not adequately discuss the opinion of Dr. Nelson. Id. at 15. 15 The Commissioner responds that the ALJ provided an adequate supportability and consistency 16 analysis for her discrediting of Dr. Nelson’s opinion and valuing of Drs. Ribeiro’s and Addonizio’s 17 opinions. Docket No. 14 at 13-16. 18 The ALJ found Dr. Nelson’s opinion unpersuasive because it was internally inconsistent 19 and not supported by his examination of Plaintiff. A.R. 41. The ALJ noted that Dr. Nelson opined 20 that Plaintiff could perform medium exertional work but simultaneously recommended that 21 Plaintiff be limited to standing and/or walking for two to six hours out of an eight-hour workday. 22 Id. Dr. Nelson indicated that Plaintiff could carry fifty pounds occasionally and twenty-five 23 pounds frequently. A.R. 736-37. He also indicated that Plaintiff could stand at least two hours in 24 a day but not more than six hours in a day. Id. at 737. Dr. Nelson’s opinion therefore suggests 25 that Plaintiff meets the strength requirements of medium work while simultaneously limiting 26 Plaintiff to the walking requirements of sedentary to light work. See Social Security Ruling 8327 10, 1983 WL 31251, *5-*6. “[T]here are a relatively few occupations in the national economy 28 which require exertion in terms of weights that must be lifted at times (or involve equivalent 8 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 9 of 10 1 exertion in pushing or pulling), but are performed primarily in a sitting position.” Id. at *6. The 2 ALJ, therefore, did not err in finding that the inconsistency between his strength and walking 3 limitations made Dr. Nelson’s opinion unpersuasive. 4 4 Additionally, the ALJ noted that, except for some difficulty squatting and rising and 5 marginally reduced range of motion in her back and hips, Dr. Nelson’s exam showed Plaintiff to 6 be of normal health and strength. A.R. 41 (citing A.R. 733-36). Without addressing how a slightly 7 reduced range of motion supported such a finding, Dr. Nelson suggested standing and/or walking 8 limitations for Plaintiff. A.R. 737. Therefore, the Court finds that the ALJ did not err in finding 9 Dr. Nelson’s opinion unsupported by his exam of Plaintiff. See Shaibi, 883 F.3d at 1108 (“Where 10 evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must 11 be upheld”) (internal quotation omitted). 12 Similarly, substantial evidence backs the ALJ’s supportability and consistency analysis of 13 Drs. Ribeiro’s and Addonizio’s opinions. The ALJ noted that Drs. Ribeiro’s and Addonizio’s 14 opinions were substantially identical to each other, both limiting Plaintiff to “light exertional 15 capacity with frequent postural activities,” excluding certain specified postural activities. A.R. 36. 16 The ALJ found “their opinions persuasive because they were well supported with references to the 17 objective medical evidence and are consistent with the record as a whole.” Id. In doing so, the 18 ALJ conducted a sufficient survey of evidence in the record beyond the opinions of the doctors 19 themselves. For example, the ALJ noted that Plaintiff has a history of mild degenerative disc 20 disease, but that this has been responding well to conservative treatment. Id. (citing A.R. 358, 360, 21 366-68, 694, 1078, 1133). Indeed, while discussing whether Plaintiff’s claimed limitations 22 matched Drs. Ribeiro’s and Addonizio’s opinions, the ALJ considered Dr. Nelson’s exam 23 observations in the context of the broader medical record. A.R. 37 (citing A.R. 501, 733-36, 924, 24 25 4 Plaintiff is correct that “Dr. Nelson did not opine limitation to medium work.” Docket No. 12 at 14. However, the form Dr. Nelson completed consisted primarily of check boxes and filling 26 in certain figures, with almost no allowance for narrative opinions. See A.R. 732-39. Dr. Nelson completed that form in a way that indicates both that Plaintiff is capable of performing medium 27 work, and incapable of standing for the time necessary to complete medium work. The fact that Dr. Nelson did not narratively opine that Plaintiff can do medium work is, therefore, 28 inconsequential. 9 Case 2:22-cv-01283-NJK Document 16 Filed 02/14/23 Page 10 of 10
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