Lewis v. Kijakazi ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 MALCOLM L., Case No. 2:23-cv-00090-NJK 8 Plaintiff(s), ORDER 9 v. 10 KILOLO KIJAKAZI, 11 Defendant(s). 12 This case involves judicial review of administrative action by the Commissioner of Social 13 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 14 pursuant to Title XVI of the Social Security Act. Currently before the Court is Plaintiff’s opening 15 brief. Docket No. 15. The Commissioner filed a response in opposition and a cross-motion to 16 affirm. Docket Nos. 17-18.1 Plaintiff filed a reply. Docket No. 19. The parties consented to 17 resolution of this matter by the undersigned magistrate judge. See Docket No. 5. 18 I. STANDARDS 19 A. Disability Evaluation Process 20 The standard for determining disability is whether a social security claimant has an 21 “inability to engage in any substantial gainful activity by reason of any medically determinable 22 physical or mental impairment which can be expected . . . to last for a continuous period of not 23 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That 24 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses 26 27 1 The cross-motion practice was abolished by the Supplemental Rules for Social Security, which now require the filing of an opening brief, a responsive brief, and a reply brief. See Supp. 28 R. for Soc. Sec. 6, 7, 8. Counsel must familiarize themselves with these new rules moving forward. 1 whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(b), 416.920(b).2 The second step addresses whether the claimant has a medically 3 determinable impairment that is severe or a combination of impairments that significantly limits 4 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The third step addresses whether the 5 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 6 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 7 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 8 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 9 mental work-related activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses 10 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 11 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 12 considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 13 404.1520(g), 416.920(g). 14 B. Judicial Review 15 After exhausting the administrative process, a claimant may seek judicial review of a 16 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 17 denying benefits if the proper legal standard was applied and there is substantial evidence in the 18 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 19 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 20 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 21 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 22 high.” Id. 23 II. BACKGROUND 24 A. Procedural History 25 On April 4, 2017, Plaintiff filed an application for supplemental security income benefits. 26 See, e.g., Administrative Record (“A.R.”) 358-79. On November 9, 2018, Plaintiff’s application 27 2 The five-step process is largely the same for both Title II and Title XVI claims. For a 28 Title II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 was denied initially. A.R. 174-78. On May 23, 2019, Plaintiff’s claim was denied on 2 reconsideration. A.R. 184-86. On June 27, 2019, Plaintiff filed a request for a hearing before an 3 administrative law judge. A.R. 187-90. On September 9, 2021, Plaintiff, Plaintiff’s representative, 4 and a vocational expert appeared for a hearing before ALJ Kathleen Kadlec. See A.R. 87-142. On 5 December 22, 2021, the ALJ issued an unfavorable decision finding that Plaintiff had not been 6 under a disability. A.R. 58-79. On November 22, 2022, the ALJ’s decision became the final 7 decision of the Commissioner when the Appeals Council denied Plaintiff’s request for review. 8 A.R. 6-12. 9 On January 17, 2023, Plaintiff commenced this action for judicial review. Docket No. 1. 10 B. The Decision Below 11 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 12 C.F.R. § 416.920. A.R. 62-79. At step one, the ALJ found that Plaintiff had not engaged in 13 substantial gainful activity since the amended alleged onset date. A.R. 63. At step two, the ALJ 14 found that Plaintiff has the following severe impairments: degenerative disc disease of the cervical 15 spine; degenerative disc disease of the lumbar spine; right shoulder tendinosis with labral cysts 16 and osteoarthritis; left knee joint effusion and osteoarthritis; and mild osteoarthritis of the right hip 17 status post left hip replacement. A.R. 64-67. At step three, the ALJ found that Plaintiff does not 18 have an impairment or combination of impairments that meets or medically equals the severity of 19 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 67-68. The ALJ 20 found that Plaintiff has the residual functional capacity to 21 perform light work as defined in 20 CFR 416.967(b) with the following additional limitations: occasional foot controls 22 bilaterally; frequent hand controls bilaterally; occasional overhead reaching bilaterally; frequent reaching in all directions bilaterally; 23 frequent handling, fingering, and feeling bilaterally; occasional climbing of ramps and stairs; no climbing of ladders, ropes, or 24 scaffolds; occasional stooping, kneeling, crouching, and crawling; no work at unprotected heights; no more than occasional work with 25 moving mechanical parts; occasional motor vehicle operation; occasional exposure to extremes of cold and heat; and, occasional 26 exposure to vibration. 27 A.R. 68-77. At step four, the ALJ found Plaintiff had no past relevant work. A.R. 77. At step 28 five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff 1 can perform based on his age, education, work experience, and residual functional capacity. A.R. 2 77-79. In doing so, the ALJ defined Plaintiff as a closely approaching advanced age and having 3 limited education. A.R. 77. The ALJ found the transferability of job skills not at issue. A.R. 77. 4 The ALJ considered Medical Vocational Rules, which provide a framework for finding Plaintiff 5 not disabled, along with vocational expert testimony that an individual with the same residual 6 functional capacity and vocational factors could perform work as a ticket taker, garment bagger, 7 and routing clerk. A.R. 77-79. 8 Based on all of these findings, the ALJ found Plaintiff not disabled since the date the 9 application was filed. A.R. 79. 10 III. ANALYSIS 11 Plaintiff raises two arguments on appeal: (1) that the RFC was not supported by substantial 12 evidence and (2) that the ALJ erred in discounting the opinion of Dr. Ibrahim Yashruti. The Court 13 addresses each argument in turn below. 14 A. RFC Formulation 15 Plaintiff argues that the ALJ’s RFC determination is not supported by substantial evidence. 16 Docket No. 15 at 7-14. While acknowledging that the RFC appears “at first blush” to be supported 17 by substantial evidence, Docket No. 15 at 9, Plaintiff contends that various aspects of the RFC are 18 lacking in evidentiary support or are contradicted by the medical record, Docket No. 15 at 9-14; 19 see also Docket No. 19 at 3-7.3 The Commissioner counters that substantial evidence supports the 20 RFC determination. Docket No. 17 at 4-14. The Commissioner has the better argument. 21 “[R]esidual functional capacity is the most [Plaintiff] can still do despite [his] limitations.” 22 20 C.F.R. § 416.945(a)(1). The RFC determination considers all medically determinable 23 impairments, including those that are not severe. Id. at § 416.945(a). The RFC assessment must 24 consider all evidence in the record and “contain a thorough discussion of the objective medical 25 26 3 The briefing is at times meandering. The Court has reviewed all of the arguments presented. Any argument not addressed explicitly herein has been rejected to the extent it is 27 inconsistent with the conclusion reached. See PlayUp, Inc. v. Mintas, 635 F. Supp. 3d 1087, 1099 (D. Nev. 2022); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (summarily 28 rejecting “[a]ll other arguments” without explanation). 1 and other evidence . . .” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing Social 2 Security Ruling 96-8p, 61 Fed. Reg 34474, 34478 (July 2, 1996)). “The RFC is an administrative 3 assessment of the extent to which an individual’s medically determinable impairments … may 4 affect his or her capacity to do work-related physical and mental activities.” Id. (quoting SSR 96- 5 8p, 61 Fed. Reg at 34475). “[A]t the administrative law judge hearing level … the administrative 6 law judge … is responsible for assessing [Plaintiff’s] residual functional capacity.” 20 C.F.R. § 7 416.946(c). The residual functional capacity determination does not need to copy the exact 8 opinion of any particular doctor; rather, “the ALJ is responsible for translating and incorporating 9 clinical findings into a succinct” residual functional capacity. Rounds v. Commissioner, 807 F.3d 10 996, 1005-06 (9th Cir. 2015); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It 11 is clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 12 functional capacity”). 13 In this case, the ALJ provided a thorough analysis of the medical evidence. A.R. 69-77. 14 In so doing, the ALJ determined that Plaintiff had grossly intact physical, musculoskeletal, and 15 neurological functioning, A.R. 75-76, a finding supported by substantial evidence, see, e.g., A.R. 16 609, 621, 643, 647, 719-20, 977, 1248. The ALJ also determined that Plaintiff regularly exhibited 17 benefit from injection therapy and medications, A.R. 76, a finding supported by substantial 18 evidence, see, e.g., A.R. 973, 1116, 1160, 1233. The ALJ also noted the medical record that 19 Plaintiff had full independent functioning as of at least February 2019, A.R. 71, a finding supported 20 by substantial evidence, A.R. 784.4 Recognizing some physical limitations, the ALJ formulated 21 an RFC for light work. A.R. 68-69. 22 23 24 4 Despite attesting under oath that he had not been working for many years, A.R. 100, 360, the medical record from 2018 includes notation that Plaintiff “cannot take off work” to undergo 25 surgery, A.R. 645 (emphasis added). Although highlighted by both the ALJ below and the Commissioner on appeal, see, e.g., A.R. 71; Docket No. 17 at 9, Plaintiff ignores the issue. He 26 does not dispute that he was in fact working during the pertinent period and that such fact constitutes substantial evidence that he is not disabled. Nor does Plaintiff challenge the ALJ’s 27 decision to discount his testimony on this basis, among others. The Court is troubled by the filing of an appeal for an award of benefits that fails to acknowledge a highlighted aspect of the record 28 reflecting that the claimant was working during the pertinent period. 1 Plaintiff’s attempts to demonstrate error in the ALJ’s formulation of the RFC are not 2 persuasive. For example, Plaintiff points to a lack of a medical opinion specifically tracking the 3 RFC, see, e.g., Docket No. 15 at 11, but the Ninth Circuit has made clear that “ALJs are, at some 4 level, capable of independently reviewing and forming conclusions about medical evidence to 5 discharge their statutory duty to determine whether a claimant is disabled and cannot work,” 6 Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022). Plaintiff also points to various evidence 7 that he contends could support a finding of disability, see, e.g., Docket No. 15 at 11-14; Docket 8 No. 19 at 6-7, but Plaintiff’s alternative interpretation of the record does not establish legal error 9 by the ALJ, see Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020); see, e.g., Matney v. Sullivan, 10 981 F.2d 1016, 1019 (9th Cir. 1992) (“if the evidence can support either outcome, the court may 11 not substitute its judgment for that of the ALJ”).5 12 Plaintiff also contends that the ALJ erred in relying on the opinion of Dr. Samuel Pak, 13 arguing that Dr. Pak failed to consider various pieces of evidence in the record that Plaintiff 14 contends support a finding of disability. Docket No. 15 at 9 (asserting that “there is a disparity 15 between the evidence that Dr. Pak considered versus the evidence in the record”). As the 16 Commissioner correctly points out, the bulk of Plaintiff’s representations on this issue are contrary 17 to the record. See Docket No. 17 at 12-13; see also A.R. 169 (“Please see FOFAE” for additional 18 19 20 21 5 Plaintiff accuses the ALJ and the Commissioner of cherry-picking the evidence. See, 22 e.g., Docket No. 19 at 6. For example, Plaintiff argues that the ALJ’s reference to normal findings fails to account for other instances in the medical record with instances of “significantly abnormal” 23 findings. Id. at 7. The Court is not persuaded that the ALJ’s decision is unsupported substantial evidence based on this contention. As an example, Plaintiff cites to the “abnormal” findings at 24 A.R. 1152-53 as being improperly ignored. See Docket No. 19 at 6. The ALJ, however, expressly discussed that exact record and the assertion therein that Plaintiff was experiencing pain that at 25 times reached a 9/10 level of severity, and the ALJ then explained in some detail why such references in the record did not show limitations beyond those established in the RFC. A.R. 73 26 (discussing 27F/47-49, which correlates to A.R. 1152-54). As another example, Plaintiff cites to a notation of a “waddling gait” as being inconsistent with the ALJ’s reference to generally normal 27 findings, Docket No. 15 at 11 (citing A.R. 708), but again the ALJ expressly addressed that specific notation and explained why it did not suffice to warrant restrictions beyond those established in 28 the RFC, A.R. 74 (discussing Exhibit 6F, including specifically A.R. 708). 1 explanation); A.R. 161-64 (findings of fact and analysis of evidence).6 Moreover, the mere fact 2 that some of the medical record was developed after Dr. Pak’s opinion does not, standing alone, 3 render it improper for the ALJ to have relied on that opinion. Brand v. Kijakazi, 575 F. Supp. 3d 4 1265, 1269 (D. Nev. 2021) (“That the non-examining physician did not review the entire record, 5 including evidence that was not in existence at the time of rendering the opinion, does not 6 automatically disqualify the opinion from constituting substantial evidence” (collecting cases)).7 7 Accordingly, the Court is not persuaded by Plaintiff’s argument that the RFC is not 8 supported by substantial evidence. 9 B. Dr. Yashruti’s Opinion 10 Plaintiff also argues that the ALJ improperly discounted the opinion of Dr. Yashruti, the 11 consultative orthopedist. Docket No. 15 at 14-17. Plaintiff argues that Dr. Yashruti’s opinion, if 12 accepted, correlates to a sedentary exertion limitation, which would in turn render Plaintiff 13 disabled. Docket No. 15 at 14. Plaintiff contends that the ALJ failed to proffer sufficient reasons 14 for discounting Dr. Yashruti’s opinion. Docket No. 15 at 15-18; see also Docket No. 19 at 7-8. 15 The Commissioner responds that substantial evidence supports the ALJ’s determination given his 16 consideration of the consistency and supportability of Dr. Yashruti’s opinion. Docket No. 17 at 17 14-18. The Commissioner has the better argument. 18 When evaluating medical evidence, an ALJ cannot “defer or give any specific evidentiary 19 weight, including controlling weight, to any medical opinion(s) or prior administrative medical 20 finding(s).” 20 C.F.R § 404.1520c(a). The ALJ must “articulate how [she] considered the medical 21 opinions and prior administrative medical findings” based on certain specified factors. Id. The 22 23 6 As an example, Plaintiff points to “the MRI of March 27, 2019, [which] documented labral tear in addition to moderate degeneration at the acromioclavicular joint. AR 873.” Docket 24 No. 15 at 10. The obvious problem with Plaintiff’s argument is that Dr. Pak did in fact consider the same. A.R. 162 (“3.27.19—MRI R SHOULDER – 1. Posterior inferior labral tear with 25 adjacent paralabral cysts, as described . . . 3. Moderate AC joint degenerative osteoarthrosis”). 26 7 The ALJ noted that new medical evidence emerged after Dr. Pak formulated his opinion, rendering Dr. Pak’s opinion only “somewhat persuasive.” A.R. 75. As explained above, the ALJ 27 formulated the RFC by looking at the entire record (including the more recent medical record). Cf. Brand, 575 F. Supp. 3d at 1269 (collecting cases that “it is not error for an ALJ to rely on 28 medical opinions that do not account for later evidence when the ALJ reviews the entire record and reaches a conclusion consistent with the record as a whole”). 1 most important factors are supportability and consistency, which the ALJ must address. 20 C.F.R. 2 § 404.1520c(b). “Supportability means the extent to which a medical source supports the medical 3 opinion by explaining the ‘relevant ... objective medical evidence.’ Consistency means the extent 4 to which a medical opinion is ‘consistent ... with the evidence from other medical sources and 5 nonmedical sources in the claim.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) 6 (quoting 20 C.F.R. §§ 404.1520c(c)(1) & (c)(2)). An ALJ may, but is not required to, address the 7 remaining provided factors. 20 C.F.R. § 404.1520c(b). Reviewing courts must affirm an ALJ’s 8 evaluation of evidence in the record if it is supported by substantial evidence. See Woods, 32 F.4th 9 at 787, 793. 10 The ALJ here found Dr. Yashruti’s opinion to be not persuasive because it was not 11 supported by his examination notes and was inconsistent with the medical record. A.R. 74-75. 12 With respect to the former, Dr. Yashruti’s examination showed intact sensation, psychomotor 13 activity, reflexes, muscle strength, muscle tone, dexterity, and range of motion in the cervical 14 spine, shoulders, elbows, wrists, hands, hips, right knee, ankles, and feet. A.R. 709-11. Moreover, 15 Dr. Yashruti’s x-rays of Plaintiff’s right shoulder, right knee, and left hip showed existing mild 16 degenerative joint disease of the acromioclavicular joint, moderate degenerative joint disease of 17 the right knee, and evidence of prior total left hip replacement with good position. A.R. 712.8 18 Hence, the ALJ’s finding that the opinion is not supported by Dr. Yashurti’s examination notes is 19 supported by substantial evidence. 20 As to the inconsistency with the medical record, that finding was also supported by 21 substantial evidence. The ALJ highlighted that the medical record showed normal and stable 22 musculoskeletal appearance, as well as relief being afforded through treatment. A.R. 74. As 23 discussed in the section above, such findings are supported by substantial evidence. See Section 24 III.A. 25 26 8 The ALJ also found that Dr. Yashruti’s opinion was remote in time. A.R. 74. Plaintiff suggests legal error in doing so because the ALJ did not afford similar treatment to Dr. Pak’s 27 opinion. Docket No. 15 at 15. The premise of this argument is wrong because the ALJ did in fact discount Dr. Pak’s opinion because he “did not have the opportunity to review any medical 28 evidence dated after May 2019.” A.R. 75. ] Accordingly, the ALJ did not err in the evaluation of Dr. Yashruti’s opinion. CONCLUSION 3 Based on the forgoing, the decision below is AFFIRMED. The Clerk’s Office is instructed 4! to ENTER FINAL JUDGMENT accordingly and to CLOSE this case. 5 IT IS SO ORDERED. 6 Dated: December 7, 2023 Nancy J. Keppé, \ 8 United States Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28