Scrum v. Commissioner of Social Security Administration ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Scrum, No. CV-21-08240-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This is a Social Security appeal. On December 13, 2021, the Court referred the 16 matter to Magistrate Judge Morrissey for the preparation of a report and recommendation 17 (“R&R”) as to the final disposition. (Doc. 10.) On November 15, 2022, Judge Morrissey 18 issued an R&R concluding that the ALJ’s decision should be affirmed. (Doc. 19.) Now 19 pending before the Court are Plaintiff’s objections to the R&R. (Doc. 20.) For the 20 following reasons, Plaintiff’s objections are overruled, the R&R is adopted, and the ALJ’s 21 decision is affirmed. 22 DISCUSSION 23 I. Legal Standard 24 Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate judge 25 to . . . submit to a judge of the court proposed findings of fact and recommendations for 26 the disposition” of a dispositive matter. Id. 27 “Within fourteen days after being served with a copy [of the R&R], any party may 28 serve and file written objections . . . as provided by rules of court. A judge of the court 1 shall make a de novo determination of those portions of the report or specified proposed 2 findings or recommendations to which objection is made. A judge of the court may accept, 3 reject, or modify, in whole or in part, the findings or recommendations made by the 4 magistrate judge. The judge may also receive further evidence or recommit the matter to 5 the magistrate judge with instructions.” Id. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(2)- 6 (3) (same). 7 District courts are not required to review any portion of an R&R to which no specific 8 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 9 not appear that Congress intended to require district court review of a magistrate’s factual 10 or legal conclusions, under a de novo or any other standard, when neither party objects to 11 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 12 (“[T]he district judge must review the magistrate judge’s findings and recommendations 13 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 14 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 15 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 16 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 17 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 18 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”). 19 II. Analysis 20 A. Listing 12.06(C) 21 The ALJ concluded during step two of the disability analysis that Plaintiff suffered 22 from various severe impairments, including “unspecified schizophrenia spectrum and other 23 psychotic disorder, social anxiety disorder, [and] history of amphetamine dependence and 24 spondylosis,” but concluded during step three that Plaintiff’s impairments did not meet, 25 and were not medically equivalent to, the criteria of any listed impairment. (AR at 22-24.) 26 With respect to listing 12.06, the ALJ began by offering an extensive discussion of 27 “whether the ‘paragraph B’ criteria are satisfied,” concluding those criteria were not 28 satisfied in part because “the claimant is still capable of maintaining interaction with 1 individuals in a variety of situations independently, appropriately, effectively, and on a 2 sustained basis despite his mental impairments. . . . [T]reating and examining providers 3 noted the claimant was pleasant and cooperative . . . he reported getting along with his 4 cellmate when he was incarcerated . . . [and] he has good relationships with his mother and 5 children. He reports having two close friends. He has a well documented history of social 6 anxiety. However, he was able to travel with his friend and join a gym. Thus, he is no 7 more than moderately limited in this area.” (Id. at 22-23.) Separately, the ALJ also 8 “considered whether the ‘paragraph C’ criteria are satisfied” and concluded they were not 9 satisfied for the following reasons: 10 The record does not establish that the claimant has only marginal adjustment, that is, a minimal capacity to adapt to changes in the claimant’s 11 environment or to demands that are not already part of the claimant’s daily 12 life. The claimant has no residual disease process resulting in such marginal adjustment that an increase in mental demands or change in environment 13 would be predicted to cause the claimant to decompensate. Nor is there a 14 current history of one or more years of an inability to function outside a highly-supportive living arrangement with an indication of continued need 15 for such an arrangement. 16 (Id. at 24.) 17 In his opening brief, Plaintiff argues that the ALJ committed error when evaluating 18 listing 12.06(C). (Doc. 16 at 4-6.) The R&R recommends that the Court reject this 19 assignment of error. (Doc. 19 at 4-9.) More specifically, the R&R explains that listing 20 12.06(C) requires proof of both (1) “[m]edical treatment, mental health therapy, 21 psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes 22 the symptoms and signs of [the claimant’s] mental disorder” and (2) “[m]arginal 23 adjustment, that is, . . . minimal capacity to adapt to changes in [the claimant’s] 24 environment or to demands that are not already part of [the claimant’s] daily life.” (Id. at 25 4, citation omitted.) The R&R concludes that the ALJ did not err in the course of analyzing 26 those criteria because: 27 While the ALJ did not cite specific record evidence in the paragraph 28 addressing those criteria, she did cite relevant evidence elsewhere at step 1 three and in the section discussing her RFC findings. In her discussion of the B criteria at step three, for instance, the ALJ noted providers described 2 Plaintiff in his interactions with others as pleasant and cooperative; that he 3 had good relationships with his mother, his children, and a few close friends; and that he could go to a gym and travel. The ALJ concluded Plaintiff had 4 only a moderate limitation in the area of adapting or managing himself, and 5 that “[his] ability to perform daily tasks is consistent with the mental functioning required to perform some work tasks despite his mental 6 impairment.” The ALJ noted signs of improvement in the medical record 7 despite Plaintiff’s “history of anxiety and isolative behavior,” such as Plaintiff’s ability to travel, go to the gym, and maintain independence in 8 personal care, including preparing simple meals, managing finances, and 9 caring for his children on some weekends. The ALJ cited and discussed evidence of Plaintiff’s improvement with medications and his daily activities 10 elsewhere in the decision. This evidence goes directly to the questions of 11 whether Plaintiff can only function in a highly structured environment and whether he has the capacity to adapt to changes in his environment or to take 12 on new responsibilities or demands without a corresponding exacerbation of 13 symptoms. Indeed, under her B criteria analysis the ALJ directly addressed the degree of Plaintiff’s limitation in the functional category of adapting or 14 managing oneself, where the ALJ assigned Plaintiff only a moderate limitation. This functional area involves the ability to “to regulate emotions, 15 control behavior, and maintain well-being in a work setting[,]” and includes 16 the abilities necessary to respond to workplace demands, adapt to changes, and make plans independently. A “moderate” limitation in this category, 17 such as the ALJ assigned here, means Plaintiff retains a “fair” ability to 18 function within that domain, i.e., between “slightly limited” and “seriously limited” on a five-point scale. Comparatively, “marginal adjustment,” as 19 noted above, means that despite two years of ongoing treatment, 20 psychosocial supports, or living within a highly structured or supportive setting, the individual’s ability to adapt to “the requirements of daily life is 21 fragile” or that he has only “minimal capacity to adapt to changes in [his] 22 environment or to demands that are not already part of [his] daily life.” The Commissioner finds “marginal adjustment when the evidence shows that 23 changes or increased demands have led to exacerbation of your symptoms 24 and signs and to deterioration in your functioning[,]” such as the inability to function outside the home or other restrictive setting “without substantial 25 psychosocial supports[.]” The evidence cited by the ALJ addresses these 26 questions. The ALJ’s discussion of the relevant evidence elsewhere at step three and beyond is sufficient. 27 (Id. at 6-7.) 28 1 Plaintiff now objects to this portion of the R&R’s analysis. (Doc. 20 at 1-5.) 2 Plaintiff argues that the ALJ’s discussion of the B criteria was insufficient to address the C 3 criteria because the latter require consideration of the claimant’s functioning in light of a 4 highly structured environment that eliminates all but minimally necessary contact with the 5 world outside the claimant’s living space; that the evidence cited by the ALJ (including 6 going to the gym, maintaining several friendships, traveling, and periodically caring for his 7 children) was insufficient; and that this case is indistinguishable from J.P. v. Saul, 2021 8 WL 6197319 (N.D. Cal. 2021). (Id.) In response, the Commissioner argues that “[t]his 9 Court should affirm the ALJ’s finding that Plaintiff was not per se disabled based on Listing 10 12.06C” because “the ALJ offered detailed citations throughout the decision clarifying how 11 Plaintiff showed more than marginal adjustment and did not depend on a highly supportive 12 living arrangement. Specifically, . . . the ALJ[ found] that Plaintiff was pleasant and 13 cooperative, had a good relationship with family and friends, was able to travel and go to 14 the gym, and could prepare simple meals, manage his own finances, and take care of his 15 children on some weekends.” (Doc. 21 at 2-3.) 16 The Court has carefully reviewed the R&R’s analysis concerning listing 12.06(C), 17 agrees with that analysis, and concludes that Plaintiff’s objections to that analysis lack 18 merit. As noted in the R&R, “the record . . . contain[s] evidence Plaintiff reported joining 19 a gym and working out and ‘going away for the weekend’ to celebrate his birthday with a 20 friend. The record also supports that Plaintiff cares for his kids and has good relationships 21 with them, and that he retained the ability to engage in personal care, handle finances and 22 engage in other household chores, such as preparing meals and taking out the trash.” (Doc. 23 19 at 6 n.4, citations omitted.) Against this backdrop, it was rational for the ALJ to 24 conclude that the highly restrictive criteria in listing 12.06(C) were not satisfied. And 25 “[w]here the evidence is susceptible to more than one rational interpretation, one of which 26 supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 27 278 F.3d 947, 954 (9th Cir. 2002). Finally, although it is unfortunate that the ALJ did not 28 cite record evidence in the specific paragraph of the decision addressing the C criteria, the 1 Court agrees with the R&R that the ALJ’s explanation and analytical path concerning the 2 C criteria may be reasonably discerned from the decision as a whole. Cf. Kaufmann v. 3 Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (the district court initially committed clear error 4 by “cit[ing] only a single page of the ALJ’s decision” in support of the conclusion that the 5 ALJ failed to provide an adequate explanation for a particular determination, because this 6 approach “overlook[ed] the ALJ’s full explanation,” and the district court properly 7 concluded upon reconsideration that “the entire record . . . supports the ALJ’s conclusion”). 8 B. Dr. Ruzich 9 In March 2020, clinical psychologist Cynthia Ruzich, Psy.D., conducted an 10 interview, medical records review, and examination of Plaintiff. (Doc. 19 at 9-10, citing 11 AR at 494-500.) Afterward, Dr. Ruzich opined that Plaintiff has various limitations. (Id.) 12 The ALJ did not fully credit Dr. Ruzich’s opinions. (AR at 29.) The ALJ’s rationale 13 was as follows: 14 Functionally, [Dr. Ruzich] opined the claimant had no problems in understanding and memory. She opined he would have difficulty completing 15 a normal workday and maintaining attendance. She further opined the 16 claimant had no social or adaptation limits. This opinion is somewhat persuasive. The opinion regarding difficulty completing a workday and 17 maintaining attendance is not persuasive, as it is based primarily upon the 18 claimant’s subjective reports of symptoms and limitations. The opinion is inconsistent with the evidence as a whole and is based upon a one-time 19 examination. Dr. Ruzich’s opinion that the claimant has no social or 20 adaptation limitations is not persuasive, as it is inconsistent with the record, which clearly shows a history of treatment for social anxiety. Additionally, 21 this opinion is inconsistent with the opinions of reviewing psychologist, Dr. 22 Fair, who opined to limitations in this area. As such, Dr. Ruzich’s opinion is not fully persuasive. 23 (Id.) 24 In his opening brief, Plaintiff argues that the ALJ committed error when discrediting 25 Dr. Ruzich’s opinions. (Doc. 16 at 6-9.) The R&R recommends that the Court reject this 26 assignment of error. (Doc. 19 at 9-13.) More specifically, the R&R explains that because 27 Plaintiff filed his application for benefits after March 2017, the ALJ’s analysis of Dr. 28 Ruzich’s opinions was governed by the new SSA regulations, which simply require 1 consideration of the supportability and consistency factors. (Id. at 10-11.) The R&R notes 2 that the ALJ explicitly considered the consistency factor and concludes that substantial 3 evidence supports the ALJ’s finding of inconsistency in light of the evidence “that 4 Plaintiff’s condition improved with medication compliance, that Plaintiff reported ‘doing 5 fairly well psychiatrically,’ that mental status examinations throughout the relevant period 6 have been ‘generally normal,’ and that Plaintiff engaged in daily activities which 7 contravene the reported severity of his symptoms. The ALJ cited treatment records 8 documenting Plaintiff presented as ‘alert and oriented with euthymic mood,’ and with ‘goal 9 directed, logical and coherent thought form, unremarkable speech, no evidence of 10 psychosis[,] and good insight and judgment’ . . . . [T]he ALJ [also] cited Plaintiff’s own 11 reports of minimal symptoms with medication compliance.” (Id. at 11-13.) Separately, 12 the R&R explains that substantial evidence supports the ALJ’s decision to discredit Dr. 13 Ruzich’s opinions based on another instance of inconsistency—specifically, Dr. Ruzich’s 14 failure to assign any limitations in the areas of social interaction or adaptation, which 15 conflicted with “prior administrative findings” and “Plaintiff’s longstanding complaints of 16 social anxiety and treatment for the same.” (Id. at 13 n.7.) Finally, the R&R explains that 17 another of the ALJ’s rationales for discounting Dr. Ruzich’s opinions—for being primarily 18 based on Plaintiff’s subjective complaints—was flawed but concludes that this error was 19 harmless in light of the ALJ’s identification of other properly supported bases for 20 discounting Dr. Ruzich’s opinions. (Id. at 13 n.8.) 21 In his objections, Plaintiff argues that the R&R’s analysis pertaining to Dr. Ruzich 22 was flawed because “[t]he ALJ failed to state why Dr. Ruzich’s limitations in sustained 23 concentration and persistence are unsupported and inconsistent.” (Doc. 20 at 5-7.) 24 Plaintiff accuses the ALJ of providing a “medical summary [that] excludes critical 25 information that conflicts with her findings” and identifies various medical records that, in 26 Plaintiff’s view, “establish[] the exact waxing and waning of symptoms described by 27 Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014).” (Id. at 6-7.) In response, the 28 Commissioner argues that the R&R’s analysis as to the consistency factor was correct, 1 disagrees with the R&R’s conclusion in footnote eight concerning reliance on subjective 2 complaints, and contends that, even if the Court agrees with footnote eight, the R&R’s 3 finding of harmlessness as to that error is correct. (Doc. 21 at 3-4.) 4 Plaintiff’s objections concerning Dr. Ruzich lack merit. As an initial matter, 5 Plaintiff does not address (let alone challenge) footnote seven of the R&R, which explains 6 that the ALJ permissibly discounted Dr. Ruzich’s opinions on the ground that Dr. Ruzich’s 7 failure to assess any limitations in the areas of “social or adaptation limitations” was 8 inconsistent with the other evidence in the record. This unchallenged determination 9 provides an independent basis for adopting the R&R’s overall recommendation to reject 10 Plaintiff’s challenge concerning Dr. Ruzich. At any rate, the Court also agrees with the 11 R&R’s determinations that (1) substantial evidence supports the ALJ’s determination that 12 Dr. Ruzich’s opined-to limitations regarding “sustained concentration and persistence” 13 were inconsistent with the medical evidence in the record and (2) any error in discrediting 14 Dr. Ruzich’s opinions due to overreliance on subjective reports of symptoms was harmless. 15 As for the former, although Plaintiff identifies various pieces of evidence in the record that 16 could view viewed as consistent with Dr. Ruzich’s opined-to limitations, it was rational for 17 the ALJ to conclude otherwise after weighing all of the conflicting evidence and, as 18 discussed in Part II.A above, “[w]here the evidence is susceptible to more than one rational 19 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 20 upheld.” Thomas, 278 F.3d at 954.1 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 1 Given these determinations, there is no need to address Plaintiff’s third objection to the R&R, which addresses the proper remedy in the event of reversal. (Doc. 20 at 8-9.) 1 Accordingly, 2 IT IS ORDERED that: 3 (1) Plaintiffs objections to the R&R (Doc. 20) are overruled. 4 (2) The R&R (Doc. 19) is adopted. 5 (3) The decision of the ALJ is affirmed. 6 (4) The Clerk shall enter judgment accordingly and terminate this action. 7 Dated this 15th day of December, 2022. 8 9 fm ee” 10 f CC —— Dominic W. Lanza 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-