(SS) Flax v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SOPHIE CLAIRE FLAX, No. 2:22-cv-01113 AC 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be DENIED, and defendant’s cross-motion for 22 summary judgment will be GRANTED. 23 I. PROCEDURAL BACKGROUND 24 Plaintiff applied for DIB on January 6, 2020. Administrative Record (“AR”) 171.2 The 25 disability onset date was alleged to be December 4, 2018. Id. The application was disapproved 26 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 27 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 2 The AR is electronically filed at ECF Nos. 10-1 (AR 1 to AR 484). 1 initially and on reconsideration. AR 90, 97. On April 13, 2021, ALJ Serena Hong presided over 2 the hearing on plaintiff’s challenge to the disapprovals. AR 36 – 59 (transcript). Plaintiff, who 3 appeared with her counsel Elizabeth Podgurski, was present at the hearing. AR 36. Susan 4 Creighton-Clavel, a Vocational Expert (“VE”), also testified at the hearing. Id. 5 On May 26, 2021, the ALJ found plaintiff “not disabled” under Sections 216(i) and 223(d) 6 of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 20-31 (decision), 32-35 (exhibit list). On 7 May 17, 2022, the Appeals Council denied plaintiff’s request for review, leaving the ALJ’s 8 decision as the final decision of the Commissioner of Social Security. AR 1-4 (decision and 9 additional exhibit list). Plaintiff filed this action on June 28, 2022. ECF No. 1; see 42 U.S.C. 10 § 405(g). The parties consented to the jurisdiction of the magistrate judge. ECF No. 9. The 11 parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the 12 Commissioner, have been fully briefed. ECF Nos. 14 (plaintiff’s summary judgment motion), 16 13 (Commissioner’s summary judgment motion). 14 II. FACTUAL BACKGROUND 15 Plaintiff was born in 1985, and accordingly was, at age 34, a younger person under the 16 regulations, when she filed her application.3 AR 171. Plaintiff has a high school education, and 17 can communicate in English. AR 195, 197. Plaintiff has work history in the restaurant industry 18 as a server, manager, and assistant general manager. AR 197. 19 III. LEGAL STANDARDS 20 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 21 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 22 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 23 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 24 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 25 Substantial evidence is “more than a mere scintilla,” but “may be less than a 26 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 27 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 28 3 See 20 C.F.R. § 404.1563(c) (“younger person”). 1 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 2 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 3 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 4 Although this court cannot substitute its discretion for that of the Commissioner, the court 5 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 6 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 7 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 8 court must consider both evidence that supports and evidence that detracts from the ALJ’s 9 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 10 “The ALJ is responsible for determining credibility, resolving conflicts in medical 11 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 12 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 13 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 14 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 15 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 16 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 17 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 18 evidence that the ALJ did not discuss”). 19 The court will not reverse the Commissioner’s decision if it is based on harmless error, 20 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 21 ultimate nondisability determination.’” Robbins v. Commissioner, 466 F.3d 880, 885 (9th Cir. 22 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 23 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 24 IV. RELEVANT LAW 25 Disability Insurance Benefits and Supplemental Security Income are available for every 26 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 27 is “disabled” if he is “‘unable to engage in substantial gainful activity due to a medically 28 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 1 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 2 The Commissioner uses a five-step sequential evaluation process to determine whether an 3 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 4 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 5 process to determine disability” under Title II and Title XVI). The following summarizes the 6 sequential evaluation: 7 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 8 9 20 C.F.R. § 404.1520(a)(4)(i), (b). 10 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, the claimant is not disabled. 11 Id. §§ 404.1520(a)(4)(ii), (c). 12 Step three: Does the claimant’s impairment or combination of 13 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to 14 step four. 15 Id. §§ 404.1520(a)(4)(iii), (d). 16 Step four: Does the claimant’s residual functional capacity make him capable of performing his past work? If so, the claimant is not 17 disabled. If not, proceed to step five. 18 Id. §§ 404.1520(a)(4)(iv), (e), (f). 19 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 20 the claimant is disabled. 21 Id. §§ 404.1520(a)(4)(v), (g). 22 The claimant bears the burden of proof in the first four steps of the sequential evaluation 23 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 24 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 25 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 26 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 27 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 28 //// 1 V. THE ALJ’s DECISION 2 The ALJ made the following findings: 3 1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2022. 4 2. [Step 1] The claimant has not engaged in substantial gainful 5 activity since December 4, 2018, the alleged onset date (20 CFR 404.1571 et seq.) 6 3. [Step 2] The claimant has the following severe impairments: 7 major depressive disorder, bipolar, generalized anxiety disorder (GAD), Attention Deficit Hyperactivity Disorder (ADHD), asthma, 8 and obesity (20 CFR 404.1520(c)). 9 4. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 10 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 11 5. [Residual Functional Capacity (“RFC”)] After careful 12 consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium 13 work as defined in 20 CFR 404.1567(c) except cannot climb ladders, ropes, and scaffolds; can perform other postural maneuvers such as 14 stooping, crouching and crawling on an occasional basis; must avoid concentrated exposure to pulmonary irritants such as dust, fumes and 15 gases; limited to simple, routine tasks with only occasional public contact; would work best in an environment with few changes in the 16 work routine; occasional interaction with coworkers and supervisors. 17 6. [Step 4] The claimant is unable to perform any past relevant work (20 CFR 404.1565). 18 7. [Step 5] The claimant was born [in 1985] and was 33 years old, 19 which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). 20 8. [Step 5, continued] The claimant has at least a high school 21 education (20 CFR 404.1564). 22 9. [Step 5, continued] Transferability of job skills is not material to the determination of disability because using the Medical-Vocational 23 Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See 24 SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 25 10. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that 26 exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). 27 28 //// 1 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 4, 2018, through the date of this 2 decision (20 CFR 404.1520(g)). 3 AR 22-30. As noted, the ALJ concluded that plaintiff was “not disabled” under Sections 216(i) 4 and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 30. 5 VI. ANALYSIS 6 Plaintiff alleges that (1) the Appeals Council erred by failing to incorporate and evaluate 7 new and material evidence submitted by plaintiff, and (2) that the ALJ improperly failed to credit 8 plaintiff’s subjective complaints as limitations in the RFC. ECF No. 14 at 10-17. 9 A. The ALJ’s RFC is Supported by Substantial Evidence 10 Plaintiff asserts that the Appeals Council incorrectly determined that additional evidence 11 submitted by plaintiff on appeal was not material, and therefore erroneously failed to consider the 12 additional evidence. ECF No. 14 at 10. In relevant part, the Appeals Council stated in its 13 opinion, “You submitted additional evidence from Daniel Notzon, M.D., dated July 6, 2021 (3 14 pages). We find this evidence does not show a reasonable probability that it would change the 15 outcome of the decision. We did not exhibit this evidence.” AR 2. 16 Social Security regulations permit a claimant to submit additional evidence to the Appeals 17 Council. 20 C.F.R. § 404.900(b), 416.1400(b). The Appeals Council is required to consider new 18 and material evidence if it “relates to the period on or before the date of the [ALJ’s] hearing 19 decision” and “there is a reasonable probability that the additional evidence would change the 20 outcome of the decision.” 20 C.F.R § 404.970(a)(5) &(b), 416.1470(a)(5) & (b) (2017). 21 Evidence that meets these criteria is to be considered by the Appeals Council and incorporated 22 into the administrative record as evidence, “which the district court must consider when 23 reviewing the Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of 24 Soc. Sec. Admin., 682 F3d 1157, 1163 (9th Cir. 2012). 25 This court has no authority to review the Appeals Council’s decision itself because 26 when the “Appeals Council denies a request for review, it is a non-final agency action not subject 27 to judicial review because the ALJ’s decision becomes the final decision of the Commissioner.” 28 Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). However, the court 1 can consider Dr. Notzon’s opinion, “which was rejected by the Appeals Council, to determine 2 whether, in light of the record as a whole, the ALJ’s decision was supported by substantial 3 evidence and was free of legal error.” Id. at 1232. Dr. Notzon’s opinion, in relevant part, 4 assesses extreme limitations in plaintiff’s ability to interact appropriately with the public and 5 supervisors, respond appropriate to usual work situations and changes in routine works settings, 6 and marked limitation sin her ability to carry out complex instructions and make judgments on 7 complex work-related decisions. AR 13-14. 8 The undersigned finds that even considering Dr. Notzon’s opinion, the ALJ’s opinion was 9 substantially supported.4 10 The RFC assessed by the ALJ specified a limited range of social functioning: plaintiff was 11 “limited to simple, routine tasks with only occasional public contact; would work best in an 12 environment with few changes in the work routine; occasional interaction with coworkers and 13 supervisors.” AR 24. The ALJ relied on plaintiff’s demonstrated capabilities which reflect her 14 ability to interact occasionally with others, such as her ability to act appropriately with various 15 medical providers and staff (in person, by telephone, and over e-mail), her ability to ride public 16 transportation without supervision, shop in stores, and travel internationally for extended periods 17 — activities that require some level of public interaction. AR 24, 27, 29, 49, 206, 331-32, 462. 18 Plaintiff’s demonstrated capabilities constituted substantial evidence supporting an RFC for 19 occasional social interactions. 20 Further, the ALJ relied on the medical opinion and observations of Consultative Examiner 21 Teresa Phillips, Psy.D., and specifically noted that plaintiff interacted appropriately with Dr. 22 Phillips and her staff throughout the consultative examination. AR 24. Dr. Phillips found that 23 plaintiff presented with a cooperative manner, displayed a positive attitude, and had appropriate 24 facial expressions, intact speech, good eye contact, good grooming, intact gross motor function, 25 unimpaired attention, logical and linear thought processes, unremarkable thought content, and 26 27 4 The court notes that although the ALJ did not consider Dr. Notzon’s opinion because it was not submitted until appeal, medical records from Dr. Notzon were before the ALJ. AR 283, 288, 290, 28 294, 304, 351. Dr. Notzon’s opinion, dated July 6, 2021, is located at AR 13-16 1 intact insight and judgment, among other normal clinical findings supporting the minimal degree 2 of social functioning assigned in the RFC. AR 24, 27-29, 330, 332). This medical evidence 3 constituted substantial evidence supporting the RFC for occasional social interactions. 4 Finally, the ALJ found persuasive the assessments of psychological consultants Norman 5 Zukowski, Ph.D. and F. Mateus, M.D. AR 28. Dr. Zukowski found plaintiff “would not need 6 extra supervision, and could work without undue interruption from psychiatric difficulties [and] 7 claimant could accept routine supervision, interact with co-workers and the public in brief 8 encounters, and could generally present with socially acceptable appearance and behavior.” AR 9 28. For all the above reasons, the ALJ’s opinion is substantially supported and not undermined 10 by Dr. Notzon’s opinion. In fact, plaintiff does not address any of the substantial evidence 11 supporting the ALJ’s decision, let alone establish that the ALJ erred when relying on it. ECF No. 12 14 at 8-10. The court does not find error. 13 B. The ALJ Did Not Err in Discounting Plaintiff’s Testimony 14 The ALJ did not err in discounting plaintiff’s subjective allegations. While an ALJ’s 15 credibility finding must be properly supported and sufficiently specific to ensure a reviewing 16 court that the ALJ did not “arbitrarily discredit” a claimant’s subjective statements, an ALJ is also 17 not “required to believe every allegation” of disability. Fair v. Bowen, 885 F.2d 597, 603 (9th 18 Cir. 1989). So long as substantial evidence supports an ALJ’s credibility finding, a court “may 19 not engage in second-guessing.” Thomas, 278 F.3d at 958. 20 In her adult function report, plaintiff stated that she has social anxiety such that she will 21 “freak out at the thought of interacting with people,” that she is unable to keep appointments, 22 sleeps for days, and no longer functions normally. AR 212. Plaintiff reported that she no longer 23 enjoys social activities and has a hard time completing tasks and concentrating. AR 217. The 24 ALJ discounted plaintiff’s subjective testimony for several reasons. First, the ALJ found 25 plaintiff’s testimony inconsistent with her demonstrated capabilities and activities of daily living. 26 For example, the ALJ noted plaintiff was able to travel internationally to Mexico; navigate public 27 transportation independently; pay bills, count change, use a checkbook and/or money orders; shop 28 in stores; maintain her personal care; prepare meals; clean; do laundry; and interact with medical 1 || personnel in person, by telephone, and in writing. AR 24-25, 27-29, 204-06, 213-15, 286-87, 2 | 331. The ALJ properly found that plaintiff's demonstrated capabilities did not support, and in 3 || fact undermined, her allegations of disabling mental limitations. A claimant’s daily activities are 4 | relevant to an ALJ’s credibility determination. See 20 C.F.R. § 404.1529(c)(3). 5 The ALJ also discounted plaintiffs subjective statements as inconsistent with the medical 6 || record. As the ALJ notes, the record is “sparse,” but the few mental-status examinations by 7 || treating medical providers documented in the record indicated intact functioning, with notations 8 | that plaintiff presented as well appearing, was not in any distress, and was alert and oriented to 9 || person, place, and time. See, e.g., AR 282, 298, 303. To the extent plaintiff alleges that the ALJ 10 || did not address evidence of “ongoing paranoia and hallucinations” (AR 296 (11/2018), 298 11 | (10/2018), 300 (10/2018), 302), the ALJ did address these issues by explaining that the record 12 || demonstrated that medication (lamotrigine) was effective in controlling the hallucinations. AR 13 | 26, citing AR 285. The ALJ’s determination that plaintiffs subjective statements did not align 14 || with the medical record and history of conservative treatment is well supported; there is no error 15 | here. See 20 C.F.R. § 404.1529(c)(2) (“Objective medical evidence ... is a useful indicator to 16 || assist us in making reasonable conclusions about the intensity and persistence of your symptoms 17 | ....”). The court does not find error. 18 VI. CONCLUSION 19 For the reasons set forth above, IT IS HEREBY ORDERED that: 20 1. Plaintiff's motion for summary judgment (ECF No. 14), is DENIED; 21 2. The Commissioner’s cross-motion for summary judgment (ECF No. 16), is 22 | GRANTED; 23 3. The Clerk of the Court shall enter judgment for the Commissioner, and close this case. 24 || DATED: September 14, 2023 ~ 25 Chthtenr—Clore_ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 27 28