(SS)(PS) Rodriguez v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BEATRIZ LORENZA RODRIGUEZ, No. 2:19-CV-1661-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding pro se, brings this action for judicial review of a final 19 decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the 20 written consent of all parties, ECF Nos. 10, 23, 28, and 30, this case is before the undersigned as 21 the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). 22 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 20, 21, 26, 29, and 33. 23 The Court reviews the Commissioner’s final decision to determine whether it is: 24 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 25 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 26 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 27 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 28 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 1 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 2 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 3 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 4 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 5 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 6 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 7 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 8 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 9 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 10 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 11 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 12 Cir. 1988). 13 For the reasons discussed below, the Commissioner’s final decision is affirmed. 14 15 I. THE DISABILITY EVALUATION PROCESS 16 To achieve uniformity of decisions, the Commissioner employs a five-step 17 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 18 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 19 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 20 not disabled and the claim is denied; 21 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 22 impairment; if not, the claimant is presumed not disabled and the claim is denied; 23 Step 3 If the claimant has one or more severe impairments, 24 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 25 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 26 27 / / / 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on March 9, 2017. See CAR 103.1 In 3 the application, plaintiff claims disability began on July 22, 2016. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, plaintiff requested an administrative 5 hearing, which was held on May 2, 2018, before Administrative Law Judge (ALJ) Judith Kopec. 6 In an October 29, 2018, decision, the ALJ concluded plaintiff is not disabled based on the 7 following relevant findings: 8 1. The claimant has the following severe impairment(s): musculoskeletal strain, depression, anxiety, and borderline 9 personality disorder; 10 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 11 the regulations; 12 3. The claimant has the following residual functional capacity: medium work; the claimant can have only occasional one-on-one 13 direct contact with the public; 14 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 15 are jobs that exist in significant numbers in the national economy that the claimant can perform. 16 See id. at 104-112. 17 18 After the Appeals Council declined review on June 26, 2019, this appeal followed. 19 20 III. DISCUSSION 21 Plaintiff has presented various pro se filings which could be construed as 22 Plaintiff’s opening brief. See ECF Nos. 20, 26, and 29. In her first such filing, Plaintiff states: 23 Hello, this is Beatriz Lorenza Rodriguez, and this is my dispositive motion. My dispositive motion to put an end to all legal proceedings in 24 court. I will attend all court hearings and doctors’ appointments with the 25 proper arrangements to arrive on time. I will attend meetings or counseling/therapy with San Juaquin Behavioral Health, the Wellness 26 Center, and the Gibson Center. Please consider my dispositive motion. I 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on January 28 21, 2020, ECF No. 14. 1 have proof of document of when I was permanently disabled diagnosed on 08/28-2016. This is the date I filed disability. Later on 01/31/2017 I was 2 diagnosed with Bipolar I, Depression, PTSD, and Borderline Personality Disorder. I am in group housing with Progressive Housing under doctor’s 3 care now. Therapist on site when I need him. I am requesting for back pay from Social Security from August 28, 4 2016, to present day. I am also requesting the highest payment to receive from Social Security $1,300.00. I will follow rules and not allow my 5 budget to under or over. I request to be my own payee as I was an Event Planner for Favorite Finds. This is my dispositive motion. Please 6 consider it and thank you for your time. 7 ECF No. 20, pg. 2. 8 In her second filing, Plaintiff states: 9 I am writing for summary judgement or remand within 45 days from being served with a copy of the administrative record. I will submit 10 new evidence with a request to voluntary remand to The Office of the General Counsel – Region IX. I am still permanently disabled. 11 ECF No. 26, pg. 1. 12 13 In her third filing, Plaintiff states: 14 I the Plaintiff am filing a motion for summary judgment within 45 days of being ordered. Rule 56 of the Federal Rules of Civil Procedure 15 governs summary judgment for federal courts. Under Rule 56 to succeed in a movant for summary judgment a motion must show 1) That there is an 16 ongoing dispute as to any material fact, and 2) that the movant entitled to judgment as a matter of law. I ask the Judge to summary judgment award 17 because the undisputed facts of the law make it clear that it would be impossible for the defendant party to prevail if the matter were to proceed 18 to trial. Please let the courts consider all designated evidence in the light most favorable to the party opposing the summary judgment motion. One 19 common tactic for defeating summary judgment is to keep the discovery process alive. I will send evidence that disputing a material fact. I will 20 wait till the judgment summary judgment can be granted until discovery is complete. 21 Motion for summary judgment. The daters [sic] my disabilities became impaired physically and emotional disabling from work were on 22 May 30, 2015. I have a permanent sprained back and sprained spine along with mental illness such as Bipolar 1, P.T.S.DD., Depression, Anxiety, 23 and Borderline Personality Disorder. Permanently diagnosed disabled October 20, 2016, by medical doctors. 24 A summary of the administrative proceedings include [sic] doctors’ appointments therapy, phone calls, phone meetings, letters, dates, 25 documents etc. Medical evidence are the medications I am taking for Bipolar 1 26 disorder. I take Divaloroex Sodium DR 500 MG generic for Depakote. Also Aripiprazole 10 MG, generic for Abilify. To treat all my disorders, I 27 am unable to move machinery. Medications make me drowsy and upset but calm my migrane [sic] headaches and my chemical imbalance. 28 1 ALJ is sworn and has left out medial evidence, such as a yearly diagnosis sheets and medications I take daily. 2 The Commissioner left out my yearly diagnosis sheet that clearly diagnosis Bipolar 1, P.T.S.D. Depression, Borderline Personality Disorder 3 and Anxiety along with thew [sic] sprained back and sprained spine. Plaintiff statement “Commissioner is leaving out important 4 medical diagnosis. He stating only half of it. Not the whole record.” Pointing out how ALJ made legal error while making a decision without 5 getting or overlooking the yearly Treatment Plans for record of diagnosis. The forms clearly state much more than just Borderline Personality 6 Disorder and Depression. An oral argument would be helpful so I can explain all the details 7 you left out. I am including new evidence and correcting everything. 8 ECF No. 29, pgs. 1-2. 9 In response to Plaintiff’s first filing, Defendant filed a cross-motion for summary 10 judgment. See ECF No. 21. In response to Plaintiff’s second and third filings, Defendant filed a 11 motion to strike. See ECF No. 33. Plaintiff has not filed a response to either of Defendant’s 12 motions. 13 Based on the parties’ filings, the following issues are before the Court: 14 (1) whether, as Defendant contends, Plaintiff’s second and third filings should be stricken; and 15 (2) whether, as Plaintiff asserts, the ALJ erred by failing to discuss evidence of Plaintiff’s 16 diagnosis of Bipolar disorder. 17 A. Defendant’s Motion to Strike 18 Defendant argues Plaintiff’s second and third filings should be stricken. See ECF 19 No. 33, pgs. 8-9. According to Defendant: 20 The Court’s Scheduling Order permitted Plaintiff to either file a motion for summary judgment or submit new evidence with a request for 21 voluntary remand mailed to the regional Office of the General Counsel (Dkt. 7 at 2). After issuing an Order to Show Cause (the second of three 22 Orders to Show Cause to Plaintiff in this case), the Court set the deadline for Plaintiff’s action to prosecute the merits of this case as May 25, 2020 23 (Dkt. 19). Plaintiff elected the first option in the Scheduling Order to file a motion for summary judgment, which she filed on May 18, 2020 (Dkt. 24 20). The Commissioner filed a cross-motion and opposition on June 5, 2020 (Dkt. 21). The Scheduling Order afforded Plaintiff the option to file 25 a reply 20 days after the Commissioner filed his brief, but Plaintiff did not avail herself of this option (Dkt. 7 at 1). 26 Id. at 8. 27 28 / / / 1 While Defendant’s objection to Plaintiff’s second and third filings is well-taken, 2 the Court declines to strike the filings. Given Plaintiff’s pro se status, the Court will consider all 3 of Plaintiff’s filings in reviewing the Commissioner’s final decision. The Court finds this will not 4 result in any prejudice to Defendant and will result in the fullest possible record and consideration 5 of Plaintiff’s assertions. 6 B. Evidence of Plaintiff’s Diagnosis 7 It appears Plaintiff contends the ALJ failed to consider evidence of various 8 diagnoses, including diagnoses of Bipolar disorder, depression, PTSD, and borderline personality 9 disorder, see ECF No. 20, pg. 2 (Plaintiff’s first filing), depression, and anxiety, see ECF No. 29, 10 pgs. 1-2 (Plaintiff’s third filing). 11 At Step 2, the ALJ determined Plaintiff has the following medically determinable 12 severe impairments: musculoskeletal strain, depression, anxiety, and borderline personality 13 disorder. See CAR 106. The ALJ’s discussion at Step 2 does not reference any diagnosis for 14 Bipolar disorder. See id. Nor is there any specific discussion of Bipolar disorder elsewhere in the 15 hearing decision. See id. at 107-112. 16 According to Defendant, any error is harmless: 17 Any alleged error from the ALJ’s omission of bipolar disorder and PTSD from the list of severe impairments at step two is at most harmless 18 because the ALJ considered the entire record in later parts of the sequential disability analysis, and that record included Plaintiff’s 19 allegations of trauma and treatment for bipolar disorder (AR 108-10; see, e.g., AR 382 [allegation of “trauma and anxiety issues”], 538 [diagnosis of 20 bipolar disorder]). The Ninth Circuit recently reiterated that the inquiry at step two “is not meant to identify the impairments that should be taken 21 into account when determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 22 ECF No. 33, pg. 9. 23 24 As Defendant acknowledges with reference to page 538 of the record, Plaintiff has 25 been diagnosed with Bipolar disorder. Specifically, in February 2017 providers at San Joaquin 26 County Behavioral Health Services noted a diagnosis of Bipolar disorder. See CAR 538. This 27 record indicates: “She meets the DSM IV criteria for Bipolar Disorder. . . .” Id.; see also id. at 28 544 (noting an Axis I diagnosis of Bipolar disorder and PTSD). Clearly, the record before the 1 ALJ contained references to Plaintiff’s Bipolar disorder diagnosis. The question, then, is whether 2 the ALJ’s failure to mention this diagnosis at any point in the sequential evaluation process can 3 be considered harmless. 4 The Ninth Circuit has applied harmless error analysis in social security cases in a 5 number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050 6 (9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness 7 testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the 8 testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins 9 v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at 10 1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004), 11 the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s 12 testimony. Specifically, the court held: 13 However, in light of all the other reasons given by the ALJ for Batson’s lack of credibility and his residual functional capacity, and in light of the 14 objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ’s decision. Any error the ALJ may have 15 committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our 16 view harmless and does not negate the validity of the ALJ’s ultimate conclusion that Batson’s testimony was not credible. 17 Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)). 18 19 In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the 20 claimant’s age and education. The Ninth Circuit also considered harmless error in the context of 21 the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a 22 medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006). 23 The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d 24 1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court 25 stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility 26 finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless 27 / / / 28 / / / 1 error.” See id. at 1162. The court articulated the difference between harmless error standards set 2 forth in Stout and Batson as follows: 3 . . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether 4 the ALJ’s decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in 5 support of an adverse credibility determination, but that such error did not affect the ALJ’s decision, and therefore was harmless, because the ALJ’s 6 remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what 7 the ALJ would do if directed to reassess credibility on remand – we focused on whether the error impacted the validity of the ALJ’s decision. 8 Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that “in each case, the ALJ’s error . . 9 . was inconsequential to the ultimate nondisability determination.” 10 Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, in that case 11 the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine 12 whether the ALJ’s decision was adequately supported. 13 Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted). 14 Thus, where the ALJ’s errs in not providing any reasons supporting a particular 15 determination (i.e., by failing to consider lay witness testimony), the Stout standard applies and 16 the error is harmless if no reasonable ALJ could have reached a different conclusion had the error 17 not occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is 18 flawed (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either 19 legally insufficient or unsupported by the record), the Batson standard applies and any error is 20 harmless if it is inconsequential to the ultimate decision because the ALJ’s disability 21 determination nonetheless remains valid. 22 Here, the ALJ did not mention Plaintiff’s Bipolar disorder anywhere in the hearing 23 decision. Beginning at Step 2, the ALJ did not list Bipolar disorder as a medically determinable 24 impairment despite medical records indicating the diagnosis. Under Stout, this error can only be 25 considered harmless if no reasonable ALJ could have reached a different disability conclusion 26 had the error not occurred. Applying this standard, the Court finds the error harmless. 27 / / / 28 / / / 1 As explained above, Plaintiff bears the burden of showing the existence of a severe 2 impairment (i.e., an impairment that more than minimally affects Plaintiff’s ability to work). See 3 Quang Van Han, 882 F.2d at 1456; see also Terry, 903 F.2d at 1275. While the record 4 demonstrates the existence of Bipolar disorder, Plaintiff has not produced evidence at Step 2 that 5 this disorder more than minimally affects her ability to work. At Step 3, the ALJ considered 6 evidence presented of Plaintiff’s mental impairments and concluded that, singly and in 7 combination, those impairments are not severe enough to satisfy any Listing-level impairment. 8 See CAR 106-107. Similarly, at Step 4, Plaintiff did not present evidence that her Bipolar 9 disorder, either singly or in combination with her other mental impairments, results in limitations 10 to her ability to perform medium work with a restriction to only occasional one-on-one contact 11 with the public. 12 Any error at Step 2 in failing to consider Bipolar disorder was harmless throughout 13 the rest of the hearing decision because Plaintiff failed to adduce evidence that any of her mental 14 conditions result in limitations greater than those found by the ALJ which compelled a decision of 15 “not disabled.” When faced with the same lack of evidence of functional limitation associated 16 with Bipolar disorder or other mental impairments, no reasonable ALJ could have reached a 17 different disability determination even had the Bipolar disorder diagnosis been discussed in detail 18 at Step 2 and beyond. Moreover, as Defendant notes, the finding at Step 2 is a de minimus 19 finding and the ALJ is still required at Step 4 to, as the ALJ did here, assess residual functional 20 capacity based on limitations associated with all impairments, even those found to be non-severe. 21 See Buck v. Berryhill, 869 F.3d 1040, 1-48-49 (9th Cir. 2017). Here, the ALJ concluded the 22 record as a whole does not support a finding of significant work-related limitations associated 23 with Plaintiff’s mental impairments. Based on the lack of evidence presented by Plaintiff, no 24 reasonable ALJ could have reached a contrary conclusion even had Bipolar disorder been 25 discussed at Step 2 and found to be severe. 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the court concludes that the Commissioner’s final decision 3 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Defendant’s motion to strike, ECF No. 33, is denied; 6 2. Plaintiff's motion for summary judgment, ECF Nos. 20, 26, and 29, is 7 | denied; 8 3. Defendant’s cross-motion motion for summary judgment, ECF Nos. 21 and 9 | 33, is granted; 10 A, The Commissioner’s final decision is affirmed; and 11 5. The Clerk of the Court is directed to enter judgment and close this file. 12 13 | Dated: March 9, 2021 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11