(SS) Rodrigues v. Commissioner of Social Security ( 2024 )

2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 KAREN RODRIGUES, No. 1:22-cv-01077-JLT-GSA 8 Plaintiff, 9 v. FINDINGS AND RECOMMENDATIONS 10 TO GRANT PLAINTIFF’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT IN PART, TO 11 SECURITY, REMAND FOR FURTHER PROCEEDINGS, AND TO DIRECT 12 ENTRY OF JUDGMENT IN FAVOR OF Defendant. PLAINTIFF AND AGAINST DEFENDANT 13 COMMISSIONER OF SOCIAL SECURITY 14 (Doc. 15, 17) 15 16 I. Introduction 17 Plaintiff Karen Rodrigues seeks judicial review of a final decision of the Commissioner of 18 Social Security denying her applications for social security disability benefits and supplemental 19 security income pursuant to Titles II and XVI of the Social Security Act.1 20 II. Factual and Procedural Background 21 In both applications Plaintiff alleged disability onset date of January 23, 2020. The 22 Commissioner denied the applications initially on September 14, 2020, and on reconsideration on 23 December 14, 2020. Plaintiff appeared for a telephonic hearing before an Administrative Law 24 Judge (the “ALJ”) on May 24, 2021. AR 31–65. The ALJ issued an unfavorable decision dated 25 July 23, 2021. AR 12–30. The Appeals Council denied review on June 27, 2022. AR 1–6. 26 27 28 1 The parties did not consent to the jurisdiction of a United States Magistrate Judge. Doc. 10, 12. III. The Disability Standard 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 9 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 10 When performing this analysis, the court must “consider the entire record as a whole and 11 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 12 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 13 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 14 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 15 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 16 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 17 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 18 To qualify for benefits under the Social Security Act, a plaintiff must establish that 19 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 20 last for a continuous period of not less than twelve months. 42 U.S.C. § 21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 22 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 23 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 24 he would be hired if he applied for work. 25 42 U.S.C. §1382c(a)(3)(B). 26 To achieve uniformity in the decision-making process, the Commissioner has established a 27 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 28 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 2 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 3 gainful activity during the period of alleged disability, (2) whether the claimant had medically 4 determinable “severe impairments,” (3) whether these impairments meet or are medically 5 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 6 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 7 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 8 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 9 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 10 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 11 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 12 IV. The ALJ’s Decision 13 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 14 the alleged onset date of January 23, 2020. AR 17. At step two the ALJ found that Plaintiff had 15 the following severe impairments: cerebrovascular accident; methamphetamine intoxication; 16 chronic pain; headaches; and obesity. AR 17. The ALJ also found at step two that there was no 17 objective or clinical evidence to establish a medically determinable impairment, severe or non- 18 severe, of degenerative disc disease or left sided carpal tunnel syndrome. AR 19. 19 At step three the ALJ found that Plaintiff did not have an impairment or combination thereof 20 that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, 21 Subpart P, Appendix 1. AR 19–20. 22 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 23 concluded that Plaintiff had the RFC to perform light work as defined in 20 CFR 404.1567(b) with 24 the following limitations: 25 . . . lift or carry occasionally 20 pounds and frequently 10 pounds; stand or walk 26 about six hours of an eight hour workday; and sit about six hours of an eight hour workday; occasionally climb, stoop, crouch, crawl, or kneel; with bilateral upper 27 extremities occasional pushing or pulling and overhead reaching; and with left, 28 minor, upper extremity frequent handling or fingering. AR 21–24. 2 At step four the ALJ concluded that Plaintiff could perform her past relevant work as an 3 office manager and custom order clerk. AR 24–25. Accordingly, the ALJ concluded that Plaintiff 4 5 was not disabled since the alleged onset date of January 23, 2020. AR 25. 6 V. Issue Presented 7 Plaintiff asserts four claims of error: 1- remand is required because the ALJ ignored medical 8 evidence of record in finding that Ms. Rodrigues’ carpal tunnel syndrome and degenerative disc 9 disease were not medically determinable impairments; 2- remand is required because the ALJ failed 10 to consider mental impairments alleged by the claimant or proven in the medical evidence of record; 11 3- remand is required because the ALJ failed to either adopt mental limitations he found credible 12 in his RFC or to explain why such credible limitations were being omitted; and 4- remand is 13 required because the ALJ and appeals council judges had no legal authority to adjudicate this case 14 because they were not properly appointed. MSJ at 4–20, Doc. 15. 15 A. Legal Standard 16 Before proceeding to steps four and five, the ALJ must first determine the claimant’s 17 residual functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, 18 19 at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] 20 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 21 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant’s impairments, 22 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling 23 (“SSR”) 96–8p. 24 In doing so, the ALJ must determine credibility, resolve conflicts in medical testimony and 25 resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). “In 26 27 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record such as 28 medical records, lay evidence and the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R. 2 § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical and other 3 evidence). “The ALJ can meet this burden by setting out a detailed and thorough summary of the 4 5 facts and conflicting evidence, stating his interpretation thereof, and making findings.” Magallanes 6 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 7 Cir. 1986)). 8 B. Analysis 9 1. Left Extremity Neuropathy and Degenerative Disc Disease 10 A medically determinable impairment (MDI) is one that results from “anatomical, 11 physiological, or psychological abnormalities that can be shown by medically acceptable clinical 12 13 and laboratory diagnostic techniques.” 20 C.F.R. §§ 404.1521, 416.921. 14 The ALJ found there was no such evidence in the record to establish an MDI of carpal 15 tunnel syndrome or degenerative disc disease. AR 19. 16 To the contrary, as Plaintiff emphasizes, a July 30, 2020 nerve conduction study and 17 electromyography test (NCS/EMG) showed “mild left median neuropathy localized at the wrist 18 consistent with carpal tunnel syndrome” and “severe left ulnar neuropathy localized at the elbow 19 consistent with cubital tunnel syndrome.” AR 691 (emphasis added). The ALJ explicitly found 20 21 there was no evidence to support an MDI of carpal tunnel (median neuropathy due to compression 22 at the wrist) but made no mention of cubital tunnel (ulnar neuropathy due to compression at the 23 elbow). Perhaps in response to the ALJ’s imprecise language, Plaintiff somewhat conflates the two 24 syndromes though they are distinct syndromes and described in the NCS/EMG report as such. 25 Notwithstanding, the ALJ erred in failing to find MDIs of carpal tunnel syndrome and cubital tunnel 26 syndrome of the left upper extremity. 27 28 The ALJ also found no evidence of an MDI of degenerative disc disease. AR 19. Again, as Plaintiff emphasizes, that finding is undermined by Dr. Birdi’s diagnoses and treatment of 2 cervical degenerative disc disease (AR 688) and related MRI abnormalities including bulging discs 3 and foraminal narrowing (AR 698–99). The record also reflects chiropractic treatment for the same 4 5 in September and October 2020 (AR 708, 712–13), physical therapy during the same time period 6 (AR 879–904) which noted physical examination findings of reduced strength (AR 879), and 7 reduced range of motion (AR 900). 8 Defendant’s counterarguments generally revolve around the theme of harmless error. The 9 Ninth Circuit has explained that “the court will not reverse an ALJ’s decision for harmless error, 10 which exists when it is clear from the record that the ALJ’s error was inconsequential to the ultimate 11 nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (emphasis 12 13 added). 14 To begin, Defendant argues that “Plaintiff fails to demonstrate how a determination that 15 degenerative disc disease and carpal tunnel syndrome were medically determinable impairments 16 would have changed the outcome of the ALJ’s disability determination since Plaintiff’s 17 impairments did not support additional limitations than those set forth by the PAMFs of Drs. Wong 18 and Bobba as well as the ALJ’s consistent RFC determination.” Resp. at 13, Doc. 17. What 19 limitations those impairments supported (and their disabling effect) is certainly the ultimate 20 21 question. However, the Ninth Circuit’s characterization of the harmless error doctrine as quoted 22 above does not offer a safe haven for the Defendant where the ALJ plainly overlooked three 23 MDIs, one of which, ulnar neuropathy, was described as severe on EMG/NCS testing. 24 Further, it is not persuasive for Defendant to focus on Drs. Wong and Bobba’s prior 25 administrative findings (or “PAMFs”). Neither the PAMFs nor the ALJ’s discussion of same 26 necessarily cures an error committed at step two with respect to MDIs. The ALJ’s decision to give 27 28 those PAMFs significant weight cannot be sustained if the ALJ made that decision based on an incomplete view of Plaintiff’s MDIs. PAMFs in and of themselves carry little to no evidentiary 2 value, rather they constitute substantial evidence only when supported by independent clinical 3 findings or other evidence. Saelee, 94 F.3d at 522; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 4 5 Cir.1995)); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 6 Defendant also suggests that Plaintiff waived the issue by failing to challenge the PAMFs, 7 or the ALJ’s reliance on the same. Defendant cites authority about waiver as a general matter but 8 does not cite to authority suggesting a claimant must overly challenge the PAMFs on appeal or the 9 ALJ’s reliance on the same. 10 Defendant further contends that the error was harmless because step-two is nothing more 11 than a de-minimis screening device used to dispose of groundless claims, and here the ALJ’s 12 13 decision proceeded past step two with respect to other MDIs. Although that is true, once the claim 14 proceeds past step two the ALJ must only consider impairments that are medically determinable, 15 whether severe or non-severe. See 20 C.F.R. § 404.1545 (explaining the agency considers “all of 16 your medically determinable impairments of which we are aware, including your medically 17 determinable impairments that are not “severe.”). The fact that the analysis continued past step two 18 with respect to other MDIs does not cure the error in finding the left arm neuropathy and cervical 19 impairments were not MDIs. Such an erroneous finding would permit the ALJ to ignore those 20 21 purported non-MDIs at the critical RFC stage. 22 Finally, Defendant emphasizes that despite incorrectly finding no MDIs at step two with 23 respect to neuropathy or degenerative disc disease, the ALJ did in fact discuss the related medical 24 evidence in the RFC analysis. Indeed, the ALJ explained as follows: 25 . . . MRI of the cervical spine showed minimal central disc bulge at C5-6 26 with slight left foraminal narrowing (Exhibit 6F/15). EMG/NCS performed in July 2020 demonstrated abnormal left upper nerve conduction with normal right upper 27 nerve conduction and normal bilateral upper needle EMG exam (Exhibit 6F/8). 28 . . . She presented with pain in the thoracic and cervical spine for several months. She was referred for chiropractic treatment with improvement in her symptoms 2 (Exhibits 5F; 9F). By October 2020, she reports less pain following treatment (Exhibit 9F/1). 3 AR 22–23. 4 5 This discussion by the ALJ was fairly brief in that the ALJ described only “abnormal left 6 upper nerve conduction” whereas a more complete description would be “severe left ulnar 7 neuropathy localized at the elbow consistent with cubital tunnel syndrome” and “mild left median 8 neuropathy localized at the wrist consistent with carpal tunnel syndrome” AR 691 (emphasis 9 added). Thus, the ALJ’s limited description discounts the significance of the severe ulnar 10 neuropathy and fails to recognize the two distinct neuropathies at issue. 11 It is often said that an ALJ’s summary of medical evidence is no substitute for an RFC 12 13 analysis. That is particularly true where, as here, the summary of the evidence was contradicted by 14 the ALJ’s step two finding that Plaintiff had no MDIs with respect to left upper extremity 15 neuropathy or degenerative disc disease. Although the RFC perhaps reflects some attempt to 16 accommodate the impairments at issue in that it limits reaching, pushing, pulling, and manipulative 17 activities, at a minimum the ALJ’s conflicting discussion suggests those impairments were not fully 18 or adequately addressed when formulating the RFC. 19 In sum, it is not clear that the error was inconsequential to the ultimate non-disability 20 21 determination. Thus, the error cannot be considered harmless. Tommasetti, 533 F.3d at 1038. 22 2. Aphasia and Anxiety 23 Plaintiff contends the ALJ failed to consider, at any stage of the analysis, Plaintiff’s mental 24 impairments of aphasia and anxiety following a January 2020 methamphetamine related stroke. 25 MSJ at 7–9. Plaintiff emphasizes the following evidence: 1- a January 2020 exam noted she was 26 aphasic, unable to understand even “simple commands,” had right and left confusion, had right 27 28 hemianopsia, and had phonemic paraphasia (AR 739, 743); 2- upon discharge from rehabilitation in February 2020, she had difficulty with expressing needs, independent memory function, and 2 complex problem solving (AR 462); and 3- she “continued to suffer with aphasia, difficulty 3 comprehending, and agitation related to aphasia through December 2020 (AR 628, 630, 634, 647, 4 5 687, 726, 729).” Id. at 8. 6 With respect to her anxiety, Plaintiff contends the ALJ only acknowledged that Plaintiff 7 was alleging disability due to anxiety (AR 21) but did not subsequently discuss it. Specifically, 8 Plaintiff emphasizes the following evidence: 1- a March 2020 anxiety diagnosis and prescription 9 for Celexa (AR 638-40); 2- a May 2020 ER visit for an acute anxiety attack at which she was 10 prescribed Hydroxyzine upon discharge (AR 570); 3- a July 2020 and October 2020 visit c/o 11 anxiety (AR 623, 896); and 4- she was continued on Hydroxyzine in December 2020 (AR 835). 12 13 Defendant responds that the ALJ reasonably considered Plaintiff’s mental impairments. 14 First, Defendant notes that ALJ considered whether Plaintiff’s methamphetamine use was a severe 15 impairment and concluded it was not. Resp. at 17. In so concluding, Defendant notes that the ALJ 16 performed the psychiatric review technique (PRT), considered the four broad areas of mental 17 functioning (the “paragraph B criteria”), and explained why Plaintiff had no more than a mild 18 limitation in each area. Id. However, Defendant’s discussion is not responsive to Plaintiff’s claims 19 of error concerning aphasia and anxiety. The severity, or lack thereof, of Plaintiff’s 20 21 “methamphetamine use” is not the issue as there is no suggestion Plaintiff was using 22 methamphetamines on an ongoing basis, or suffered ongoing mental impairments as a result of 23 chronic substance abuse.2 Rather, as the ALJ acknowledged, Plaintiff had a one-time 24 cerebrovascular event (i.e. a stroke) in January of 2020 “related to” her methamphetamine use3. 25 26 2 If that were the case, the relevant inquiry would be as set forth in the regulations which specifically address substance abuse at 20 C.F.R. 416.935, which disallows an award of benefits where: a) the ALJ finds drug addiction 27 or alcoholism; and, b) the substance abuse is a contributing factor material to the determination of disability. The ALJ did not make these findings or consider that regulation. 28 3Plaintiff testified she did not use methamphetamines thereafter, and the ALJ did not indicate there was any evidence suggesting otherwise. AR 21. Her contention is that she suffered cognitive issues (aphasia) and anxiety following that event which 2 were diagnosed and treated as set forth in the records cited above. Importantly, the ALJ’s 3 discussion of the PRT and consideration of the four areas of mental functioning do not mention 4 5 aphasia, the associated cognitive manifestations, anxiety, or cite any of the corresponding evidence 6 as the ALJ’s discussion was largely limited to Plaintiff’s reported activities and what those activities 7 purportedly demonstrated. AR 18-19. 8 As far as the medical evidence, the only citation the ALJ provided at step two was to Exhibit 9 3F to support the proposition that “her memory and intellectual function were fairly intact upon 10 examination,” and “clinical findings show no difficulties in cognitive functioning, memory, and 11 concentration.” AR 18-19 (emphasis added). “Fairly intact” is a somewhat ambiguous description 12 13 which does not necessarily have a benign connotation. “No difficulties with cognitive function, 14 memory, or concentration” is quite a strong assertion and requires commensurately strong support 15 yet the ALJ cited Exhibit 3F in its entirety which is 47 pages of inpatient hospital rehabilitation 16 records from January 2020 to February 2020 following her stroke. The ALJ did not specify which 17 pages or findings were relied upon. Further, as discussed above, Plaintiff cited counterexamples 18 of cognitive difficulties including an example from Exhibit 3F. See AR 462 (noting difficulty with 19 expressing needs, independent memory function and complex problem solving). 20 21 At step two the ALJ also referenced “other evidence detailed below.” In the subsequent 22 RFC section the ALJ did provide a bit more detail: 23 On January 22, 2020, claimant presented to the emergency room (ER) complaining of left-sided weakness and right facial droop. Despite denying drug and alcohol use, 24 urine toxicology was positive for amphetamines. Diagnostic assessment included 25 methamphetamine abuse and she was discharged home (Exhibit 2F/45, 52). The following day, she was admitted after presented with altered mental status that was 26 likely meth intoxication, acute ischemic cerebrovascular accident with no neuro deficit and chronic pain syndrome. She was discharged to rehabilitation for acute 27 physical therapy, occupational therapy and speech therapy. Discharge diagnoses 28 included cerebrovascular accident, altered mental status, and acute cerebrovascular accident with some hemorrhagic transformation with right-sided weakness, chronic pain syndrome, and amphetamine use (Exhibit 12F/2-5). Subsequent progress notes 2 document slow but steady improvement (Exhibits 3F; 5F; 9F). 3 She was seen in the ER in May 2020 for right facial numbness and dysphagia. Diagnostic imaging is within normal limits. Her headache improved with Ativan 4 and on recheck, she has no facial numbness, hand numbness or headache prompting 5 her stable discharge (Exhibit 12F/61, 65). Due to musculoskeletal complaints as well as headaches, diagnostic workup was recommended in June 2020 (Exhibit 6F/4-5). 6 MRI of the cervical spine showed minimal central disc bulge at C5-6 with slight left foraminal narrowing (Exhibit 6F/15). EMG/NCS performed in July 2020 7 demonstrated abnormal left upper nerve conduction with normal right upper nerve conduction and normal bilateral upper needle EMG exam (Exhibit 6F/8). 8 9 When seen August 19, 2020, she reports poor sle ep but improvement in her headaches. While slightly unsteady gait is noted, the rest of the physical examination 10 is within normal limits. It is noted that she had no difficulty understanding or finding words (Exhibit 6F/1). The following month, she reports the CVA affected her 11 memory and she has difficulty reading and coming up with words. Additionally, she feels she has some right-sided weakness and continues to work with physical 12 therapy. Of note, she states her migraines have been better and only gets it 13 occasionally, maybe once a month (Exhibit 11F/9). 14 Immediately following the stroke, the claimant had significant right-sided symptoms (Exhibit 3F/8). By the end of her acute rehabilitation, she had shown 15 modest improvement. She remained medically stable during her rehab stay; right hemiparesis continues to improve to near normal muscle strengths and coordination 16 also improved (Exhibit 3F/9, 46-48). Office visit notes show the claimant’s 17 complaints of chronic pain that she attributed to the stroke. She presented with pain in the thoracic and cervical spine for several months. She was referred for 18 chiropractic treatment with improvement in her symptoms (Exhibits 5F; 9F). By October 2020, she reports less pain following treatment (Exhibit 9F/1). 19 In December 2020, she presents to the ER complaining of constant headache for the 20 past four days that was associated with nausea and blurred vision (Exhibit 12F/88). 21 Other than slight right-sided deficit, objective findings were unremarkable (Exhibit 12F/92). Her headache was addressed with migraine cocktail resulting in complete 22 resolution of her headache and she was subsequently discharged (Exhibit 12F/94). During a follow-up visit later that month, she states she continues to have migraine 23 headaches almost every day, 25/30 days of the month. Elavil was stopped and she was started on Gabapentin (Exhibit 11F/3). 24 25 AR 22-23 (emphasis added). 26 Although this RFC discussion was much more detailed than the ALJ’s step two discussion, 27 it primarily addressed physical manifestations of the stroke including left sided weakness, facial 28 droop, facial numbness, right sided weakness, dysphagia, hand numbness, migraines, musculoskeletal pain, nausea, blurred vision, coordination and gait. 2 As it concerns aphasia, the ALJ’s relevant findings were few. First, the ALJ stated that the 3 record demonstrated overall slow but steady improvement following her stroke, which is non- 4 5 specific and was substantiated by generalized citations to exhibits 3F, 6F, and 9F in their entirety. 6 Next, the ALJ notes that “when seen August 19, 2020 . . . she had no difficulty 7 understanding or finding words (Exhibit 6F/1)”, though the following month she reported difficulty 8 with memory and coming up with words. AR 22. However, this example of a benign notation 9 related to aphasia in the 12 months following the stroke (AR 684), is offset by Plaintiff’s detailed 10 numerous examples to the contrary, including: 1- a January 2020 exam noting that she was aphasic, 11 unable to understand even “simple commands,” had right and left confusion, had right hemianopsia, 12 13 and had phonemic paraphasia (AR 739, 743); 2- upon discharge from rehabilitation in February 14 2020, she had difficulty with expressing needs, independent memory function, and complex 15 problem solving (AR 462); and 3- she “continued to suffer with aphasia, difficulty comprehending, 16 and agitation related to aphasia through December 2020” (AR 628, 630, 634, 647, 687, 726, 729). 17 Id. at 8. Defendant does not dispute the accuracy or completeness of Plaintiff’s factual discussion, 18 but offers one additional counterexample, namely the September 16, 2020 visit notes indicating no 19 aphasia. Resp. at 19 (citing AR 730). Again, these two examples appear to be outweighed by those 20 21 cited by Plaintiff making affirmance not appropriate. 22 Finally, Defendant emphasizes that “where evidence is susceptible to more than one 23 rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 24 F.3d 676, 679 (9th Cir. 2005). However, that principle is best reserved for situations where the 25 ALJ acknowledges the normal and abnormal medical findings alike and attempts to reconcile the 26 two, rather than disregarding the latter. 27 28 With respect to anxiety, the ALJ mentioned the condition on exactly one occasion, specifically that “Claimant sustained a methamphetamine related stroke on January 23, 2020 with 2 residual symptoms, anemia, anxiety.” AR 21. The ALJ did not cite or discuss the related evidence 3 as Plaintiff detailed including: 1- a March 2020 anxiety diagnoses and prescription for Celexa (AR 4 5 638-40); 2- a May 2020 ER visit for an acute anxiety attack at which she prescribed Hydroxyzine 6 upon discharge (AR 570); 3- July 2020 and October 2020 visits c/o anxiety (AR 623, 896); and 4- 7 she was continued on Hydroxyzine in December 2020 (AR 835). These records may not 8 necessarily be extensive, or even strongly indicative of profound functional limitations, but the 9 ALJ’s discussion of anxiety was more or less non-existent. 10 Finally, Defendant again explains at length the purported significance of the prior 11 administrative findings (PAMFs) of Drs. Franco and Milan at the initial and reconsideration levels 12 13 of review. AR 17-18. Defendant emphasizes that Drs. Franco and Milan reviewed the pertinent 14 evidence Plaintiff emphasizes and found no more than mild limitations in any area of functioning, 15 and that the ALJ explained his reasoning for adopting their opinions. Resp. at 17-18. In short, the 16 argument is not persuasive. The ALJ did little more than recite Drs. Franco and Milan’s opinions 17 and assert in a conclusory fashion that they are persuasive and consistent with the record. AR 24. 18 Importantly, this deference does not demonstrate that the ALJ examined and considered the 19 pertinent evidence. The Commissioner’s consistent focus on PAMFs is not helpful to their 20 21 argument. Although the state agency consultants’ PAMFs are relevant considerations under the 22 regulations (20 C.F.R. § 404.1513a(b)(1)), they only constitute substantial evidence when 23 supported by independent clinical findings or other evidence. Saelee, 94 F.3d at 522; Andrews v. 24 Shalala, 53 F.3d 1035, 1041 (9th Cir.1995)); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 25 2002). Claimants are statutorily entitled to a de novo review by an ALJ “based on evidence adduced 26 at the hearing.” See 42 U.S.C. § 405(b); SSR 83-46c (“the Social Security Act provides each 27 28 claimant with a right to a de novo hearing.”); SSR 77-4 (“The claimant’s right to a de novo hearing, if he wishes one, is made clear by the reference in section 205(b) to the claimant’s right to a decision 2 based on evidence ‘adduced at the hearing.’”). Simply giving deference to PAMFs could ultimately 3 render the right to de novo review by an ALJ illusory. As the Ninth Circuit has stated in other 4 5 contexts, de novo review “considers the matter anew, as if no decision had been rendered.” Dawson 6 v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). 7 Therefore, Remand is appropriate for the ALJ to consider the above-cited evidence 8 concerning Plaintiff’s aphasia and anxiety and the functional limitations attributable to those 9 impairments. 10 3. Incorporation of Mild Mental Limitations 11 Plaintiff next contends in regard to mental limitations that the ALJ’s opinion is internally 12 13 inconsistent in that while the ALJ did find at least mild mental limitations in the four functional 14 categories at step two, the ALJ failed to incorporate them into the RFC which makes no 15 accommodation for mental limitations. But this argument fails as there is no controlling authority 16 stating that mild limitations must be incorporated into an RFC. The existence of two marked 17 limitations, or one extreme limitation, satisfies listing 12.15 and is per se disabling, whereas an 18 impairment causing no more than mild limitations in any area is generally considered a non-severe 19 impairment. 20 C.F.R. § 416.920a(d)(1). 20 21 Plaintiff cites authority requiring the agency to “consider” the functional effects of both 22 severe and non-severe impairments at the RFC stage, but that does not necessarily require the ALJ 23 to articulate such consideration, nor does it mean the ALJ must incorporate mild limitations in the 24 RFC. MSJ at 10 (citing 20 C.F.R. §§ 404.1523(c), 404.1545(a)(2), 404.1529(d)(4), 416.923(c), 25 416.945(a)(2), 416.929(d)(4) (requiring adjudicators to consider the functional effects of all 26 medically determinable impairments, not merely those which are severe, when formulating the RFC 27 28 finding). As for moderate limitations, by contrast, some courts have found they must be incorporated in the RFC. See, e.g. Wascovich v. Saul, 2:18-CV-659-EFB, 2019 WL 4572084, at 2 *4 (E.D. Cal. Sept. 20, 2019) (“Where the ALJ accepts the medical assessment of moderate 3 limitations, those limitations must be accounted for in the RFC.”); (citing Betts v. Colvin, 531 F. 4 5 App’x 799, 800 (9th Cir. 2013). 6 Plaintiff reliance on isolated examples of district court opinions from other circuits holding 7 otherwise are not consistent with the regulations as discussed above. MSJ at 14 (citing Richardson 8 v. Saul, 511 F.Supp.3d 791, 798-99 (E.D. Ky. 2021) (overturning a step 4 finding because the ALJ 9 did not explain why the RFC finding omitted mild mental functional limitations identified in the 10 PRT analysis). 11 However, it is another matter entirely whether Plaintiff’s aphasia and anxiety, singly or in 12 13 combination, cause moderate or greater limitations in the four areas of mental functioning and 14 whether they should therefore be incorporated into the RFC. The ALJ should consider this on 15 Remand after discussing the evidence of Plaintiff’s aphasia and anxiety. 16 4. Proper Appointment of ALJ and Appeals Council 17 Finally, Plaintiff contends that both the ALJ and the Appeals Council judges had no legal 18 authority to adjudicate this case. Plaintiff explains that under the Federal Vacancies Reform Act 19 (FVRA) 5 U.S.C. § 3346(a), former acting Commissioner Berryhill’s term (which began on January 20 21 20, 2017) should have expired 210 days later on November 16, 2017, and that Ms. Berryhill 22 unlawfully persisted as acting Commissioner through the date Andrew Saul became Commissioner 23 on June 17, 2019. Therefore Plaintiff contends that former acting Commissioner Berryhill had no 24 authority to take the action she took on July 16, 2018 in ratifying the appointment of SSA’s ALJs 25 and Appeals Council judges (See SSR 19-1p, 2019 WL 1324866) and thus neither the ALJ nor the 26 Appeals Council judges had authority to adjudicate the instant case. 27 28 Plaintiff provided little discussion of this issue. Plaintiff’s argument is predicated on two out of circuit district court opinions: Brian T. D. v. Kijakazi, 2022 WL 179540 (D. Minn. Jan. 20, 2 2022) and Richard J.M. v. Kijakazi, 2022 WL 959914 (D. Minn. Mar. 30, 2022). These opinions, 3 although they discuss this issue quite thoroughly, are not controlling. Further, as Defendant 4 5 emphasizes, these cases are no longer good law following the decision in Dahle v. Kijakazi, 62 6 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S. Ct. 549, 217 L. Ed. 2d 7 293 (2024). 8 Notably, Plaintiff’s brief was filed January 2, 2023, which was after the issuance of the two 9 district court cases in Brian and Richard in 2022, and before the Eight Circuit’s decision in Dahie 10 on March 7, 2023. Thus, Plaintiff’s reliance on the district court authority was not an oversight on 11 Plaintiff’s part. Nevertheless, Plaintiff does not contend in her reply brief that those district court 12 13 cases are still good law, nor contend that any other controlling or persuasive authority has similarly 14 held, and her reply brief does not otherwise revisit the issue of the alleged improper appointment 15 of the ALJs and Appeals Council judges by former acting Commissioner Berryhill. 16 VI. Findings 17 Remand is appropriate for the ALJ to conduct a new hearing and issue a new decision. 18 Specifically, the ALJ should reconsider all evidence concerning Plaintiff’s: 1- severe left ulnar 19 neuropathy (cubital tunnel syndrome); 2- mild left median neuropathy (carpal tunnel syndrome); 20 21 3- cervical degenerative disc disease; 4- aphasia and anxiety. 22 VII. Recommendations 23 For the reasons stated above, the recommendation is as follows: 24 1. That Plaintiff’s motion for summary judgment (Doc. 15) be GRANTED in part. 25 2. That Defendant’s cross-motion (Doc. 17) be DENIED in part. 26 3. That the matter be remanded to the Commissioner of Social Security pursuant to 27 28 sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with the Findings and Recommendations. 2 4. That the Court Clerk of Court be directed to enter judgment in favor of Plaintiff 3 Karen Rodriguez and against Defendant Commissioner of Social Security. 4 5 VIII. Objections Due Within 14 Days 6 These Findings and Recommendations will be submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 8 days after being served with these Findings and Recommendations, any party may file written 9 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” The parties are advised that failure to file objections within the 11 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 13 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16 Dated: June 4, 2024 /s/ Gary S. Austin 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28