Frazho v. Martin O'Malley ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 GREGORY F., Case No.: 2:23-cv-00721-NJK 7 Plaintiff, ORDER 8 v. 9 MARTIN O’MALLEY, Commissioner of 10 Social Security, 11 Defendant. 12 13 This case involves judicial review of administrative action by the Commissioner of Social 14 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 15 pursuant to Title II of the Social Security Act. Currently before the Court is Plaintiff’s opening 16 brief. Docket No. 12. The Commissioner filed a response in opposition and a cross-motion to 17 affirm. Docket Nos. 13-14.1 Plaintiff filed a reply. Docket No. 17. The parties consented to 18 resolution of this matter by the undersigned magistrate judge. See Docket Nos. 3, 10. 19 I. STANDARDS 20 A. Disability Evaluation Process 21 The standard for determining disability is whether a social security claimant has an 22 “inability to engage in any substantial gainful activity by reason of any medically determinable 23 physical or mental impairment which can be expected . . . to last for a continuous period of not 24 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That 25 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 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. R. for Soc. Sec. 6, 7, 8. Counsel must 28 familiarize themselves with these new rules moving forward. 1 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses 2 whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 3 404.1520(b), 416.920(b).2 The second step addresses whether the claimant has a medically 4 determinable impairment that is severe or a combination of impairments that significantly limits 5 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The third step addresses whether the 6 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 7 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 8 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 9 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 10 mental work-related activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses 11 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 12 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 13 considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 14 404.1520(g), 416.920(g). 15 B. Judicial Review 16 After exhausting the administrative process, a claimant may seek judicial review of a 17 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 18 denying benefits if the proper legal standard was applied and there is substantial evidence in the 19 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 20 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 21 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 22 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 23 high.” Id. 24 /// 25 /// 26 /// 27 2 The five-step process is largely the same for both Title II and Title XVI claims. For a Title II claim, however, a 28 claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 II. BACKGROUND 2 A. Procedural History 3 On August 8, 2021, Plaintiff filed an application for social security disability insurance 4 benefits. See, e.g., Administrative Record (“A.R.”) 109. On November 1, 2021, Plaintiff’s 5 application was denied initially. A.R. 129-32. On April 7, 2022, Plaintiff’s claim was denied on 6 reconsideration. A.R. 135-38. On April 11, 2022, Plaintiff filed a request for a hearing before an 7 administrative law judge. A.R. 139-41. On October 28, 2022, Plaintiff and a vocational expert 8 appeared for a hearing before ALJ Kathleen Kadlec. See A.R. 39-102. On January 4, 2023, the 9 ALJ issued an unfavorable decision finding that Plaintiff had not been under a disability. A.R. 11- 10 25. On March 20, 2023, the ALJ’s decision became the final decision of the Commissioner when 11 the Appeals Council denied Plaintiff’s request for review. A.R. 1-5. On May 8, 2023, Plaintiff 12 commenced this action for judicial review. Docket No. 1. 13 B. The Decision Below 14 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 15 C.F.R. § 416.920. A.R. 13-25. At step one, the ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since the alleged onset date. A.R. 13. At step two, the ALJ found that 17 Plaintiff has the following severe impairments: degenerative joint disease of the knees, 18 degenerative disc disease of the lumbar spine, right shoulder osteoarthritis, and post-traumatic 19 stress disorder. A.R. 13. At step three, the ALJ found that Plaintiff does not have an impairment 20 or combination of impairments that meets or medically equals the severity of one of the listed 21 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 15-18. The ALJ then found that 22 Plaintiff has the residual functional capacity to perform medium work as defined in 20 CFR 23 404.1567(c) except he is limited to: 24 frequent stooping, kneeling, crouching, crawling, and climbing ramps or stairs; and occasional climbing of ladders, ropes, or 25 scaffolds. The [Plaintiff] can frequently reach overhead and in all other directions with the right upper extremity. The [Plaintiff] can 26 have occasional exposure to unprotected heights, moving mechanical parts, and operation of a motor vehicle. The [Plaintiff] 27 can have frequent exposure to extreme heat and cold. The [Plaintiff] can work in an environment with moderate noise. The [Plaintiff] can 28 have no more than occasional exposure to outside work. The [Plaintiff] is able to have frequent interaction with supervisors, 1 coworkers, and the public. 2 A.R. 18-22. At step four, the ALJ found Plaintiff capable of performing past relevant work as a 3 still photographer, skate shop worker, and audio-video repairer. A.R. 22-23. At step five, the ALJ 4 found that jobs exist in significant numbers in the national economy that Plaintiff can perform 5 based on his age, education, work experience, and residual functional capacity. A.R. 23-25. In 6 doing so, the ALJ defined Plaintiff as closely approaching advanced age and having a high school 7 education. A.R. 23. The ALJ found the transferability of job skills not at issue. A.R. 77. The 8 ALJ considered Medical Vocational Rules, which provide a framework for finding Plaintiff not 9 disabled, along with vocational expert testimony that an individual with the same residual 10 functional capacity and vocational factors could perform work as a Bartender Helper, Motor 11 Vehicle Assembler, and an Industrial Cleaner. A.R. 23-24. 12 Based on these findings, the ALJ found Plaintiff not disabled since the date the application 13 was filed. A.R. 25. 14 III. ANALYSIS 15 Plaintiff raises two arguments on appeal: (1) the RFC was not supported by substantial 16 evidence because the ALJ failed to incorporate her step two finding of moderate limitation in 17 adapting or managing oneself into the RFC; and (2) the ALJ assessed functional limitations that 18 were not supported by medical evidence. 19 A. Limitations in Adapting or Managing Oneself 20 Plaintiff argues that at step two of the sequential evaluation process the ALJ found that 21 Plaintiff had a moderate limitation in adapting or managing oneself and that the ALJ failed to 22 include any limitations relating to that finding in the RFC. Docket No. 11 at 7-8.3 Plaintiff further 23 argues that the ALJ erred by failing to explain why she did not include those limitations in the 24 25 26 3 While Plaintiff argues that at step two the ALJ found that Plaintiff had “moderate limitations,” the ALJ limited that finding in consideration of Plaintiff’s function reports and medical records, stating: “Considering this evidence, the 27 [claimant] has at most a moderate limitation in the ability to adapt or manage himself.” A.R. 17 (emphasis added). Further, the ALJ stated that this finding was not an RFC and was made “to rate the severity of the mental impairments 28 at steps two and three of the sequential evaluation process.” A.R. 18. 1 RFC. Id. at 8-10. The Commissioner counters that the ALJ did include limitations in adapting or 2 managing oneself in the RFC. Docket No. 13 at 4-6. The Commissioner has the better argument. 3 “[R]esidual functional capacity is the most [Plaintiff] can still do despite [his] limitations.” 4 20 C.F.R. § 416.945(a)(1). The RFC determination considers all medically determinable 5 impairments, including those that are not severe. Id. at § 416.945(a). The RFC assessment must 6 consider all evidence in the record and “contain a thorough discussion of the objective medical 7 and other evidence . . .” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing Social 8 Security Ruling 96-8p, 61 Fed. Reg 34474, 34478 (July 2, 1996)). “The RFC is an administrative 9 assessment of the extent to which an individual’s medically determinable impairments … may 10 affect his or her capacity to do work-related physical and mental activities.” Id. (quoting SSR 96- 11 8p, 61 Fed. Reg at 34475). “[A]t the administrative law judge hearing level … the administrative 12 law judge … is responsible for assessing [Plaintiff’s] residual functional capacity.” 20 C.F.R. § 13 416.946(c). The residual functional capacity determination does not need to copy the exact 14 opinion of any particular doctor; rather, “the ALJ is responsible for translating and incorporating 15 clinical findings into a succinct” residual functional capacity. Rounds v. Commissioner, 807 F.3d 16 996, 1005-06 (9th Cir. 2015); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It 17 is clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 18 functional capacity”). 19 In this case, the Court finds that the ALJ did include limitations directed toward Plaintiff’s 20 ability to adapt or manage himself in the RFC. A.R. 18, 21-22. Specifically, the ALJ found that 21 Plaintiff could perform medium work as defined by the regulations, but that Plaintiff was limited 22 to: occasional operation of a motor vehicle, occasional exposure to outside work, and working in 23 an environment with moderate noise. A.R. 18. The ALJ explained that the limits “on noise and 24 driving” were specifically designed to limit his exposure to environments that triggered his PTSD. 25 A.R. 21. The Court finds that the RFC and the explanation of these limitations fulfilled the ALJ’s 26 duty to translate and incorporate the medical opinions, clinical records, and Plaintiff’s symptoms 27 “into a succinct RFC.” Rounds, 807 F.3d at 1006. Plaintiff’s alternative interpretation of the record 28 does not establish legal error by the ALJ. See Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020); 1 see also, Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“if the evidence can support 2 either outcome, the court may not substitute its judgment for that of the ALJ”). 3 Plaintiff’s other attempts to demonstrate error in the ALJ’s formulation of the RFC are not 4 persuasive. For example, Plaintiff asserts that the ALJ failed to “include any additional limitations 5 or accommodations related to adapting and managing oneself, such as for few, if any, changes in 6 routine work setting, or a time off-task allowance, in the RFC.” Docket No. 11 at 8 (citing Warren 7 v. Saul, No. 8:19-cv—02270-PD, 2021 WL 259435 at *6 (2021) (“While moderate limitations do 8 not necessarily indicate that Plaintiff is unable to perform all work activity, the ALJ was required 9 to either include these limitations in Plaintiff’s RFC assessment or provide legally sufficient 10 reasons for rejecting them.”)). However, Plaintiff fails to identify for the Court any additional 11 limitations that were recommended by a reviewing, examining, or treating physician that should 12 have been included in the RFC or were expressly rejected by the ALJ. In this case, there are no 13 records of additional limitations recommended by any doctor. 14 Additionally, Warren only requires an explanation from the ALJ when the ALJ accords 15 “substantial or great weight to a physician’s opinion[.]” Id. at *4. Here, the ALJ found the opinions 16 of the reviewing psychological consultants to be only partially persuasive. A.R. 22. Therefore, 17 the ALJ was not required to provide further explanation. Warren, 2021 WL 259435 at *4. Even 18 if she had been required to provide further explanation, however, she adequately identified why 19 the opinions were only partially consistent with the record. A.R. 22. Accordingly, the Court is 20 not persuaded by Plaintiff’s argument that the ALJ failed to include RFC limitations in the area of 21 adapting or managing oneself. 22 B. The RFC was Supported by Substantial Evidence 23 Plaintiff next argues that the ALJ’s mental RFC determination is not supported by 24 substantial evidence because no medical opinion recommended the functional limitations assessed 25 by the ALJ. Docket No. 11 at 11-13. For example, Plaintiff points to the lack of a medical opinion 26 specifically tracking the RFC, see, e.g., Docket No. 11 at 11, arguing that the ALJ was substituting 27 her own judgment for a competent medical opinion. The Commissioner, on the other hand, 28 responds that the ALJ must consider all the evidence in the record and is not required to create 1 functional limitations in the RFC that mirror specific medical opinions. Docket No. 13 at 6-7. The 2 Commissioner has the better argument. 3 The Ninth Circuit has made clear that “ALJs are, at some level, capable of independently 4 reviewing and forming conclusions about medical evidence to discharge their statutory duty to 5 determine whether a claimant is disabled and cannot work.” Farlow v. Kijakazi, 53 F.4th 485, 488 6 (9th Cir. 2022). The ALJ is the “final arbiter with respect to resolving ambiguities in the medical 7 evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Even if the evidence is 8 “susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 9 upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 10 In this case, the only opinions of which the ALJ had the benefit were the opinions of non- 11 examining state agency psychological consultants who reviewed the medical records for an initial 12 determination and on reconsideration of that determination. A.R. 111, 122. Both consultants, Drs. 13 Jack Araza and Ana Olivares, concluded that Plaintiff’s mental impairments were non-severe. Id. 14 They each assessed mild limitations in all four broad areas of mental functioning. A.R. 111, 123. 15 They did not provide a mental RFC assessment. A.R. 114, 126. 16 In reviewing the totality of the evidence, the ALJ found the opinions partially persuasive 17 because “considering the observations of abnormal moods” and “[Plaintiff’s] report of a history of 18 termination for adverse interactions” she concluded that additional, but only slightly moderate, 19 limitations were justified. Id. at 20, 22. Considering the evidence and assessing an RFC that 20 accounts for the limits of what work Plaintiff can do is the essence of what the ALJ does. “[T]here 21 is no requirement in the regulations for a direct correspondence between an RFC finding and a 22 specific medical opinion on the functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 23 1288 (10th Cir. 2012). Here, the ALJ considered the opinion of the reviewing doctors, compared 24 the opinion to the other evidence in the record, described her reasons for finding the opinions 25 partially persuasive and then gave explicit reasons for adding limitations based on the other 26 credible evidence. A.R. 17-22. Even if the Court were to disagree with the ALJ’s conclusions, 27 which it does not, the ALJ’s decision must be upheld where the evidence is susceptible to more 28 than one rational interpretation. Burch, 400 F.3d at 679. Accordingly, the Court is not persuaded 1} by Plaintiff's argument that the ALJ’s mental RFC determination is not supported by substantial evidence because no medical opinion recommended the functional limitations assessed by the ALJ. To the contrary, the Court finds that substantial evidence supports the ALJ’s determination. 4! IV. CONCLUSION 5 Based on the forgoing, the decision below is AFFIRMED. The Court DENIES Plaintiff's 6] motion to remand, Docket No. 11, and GRANTS the Commissioner’s countermotion to affirm, Docket No. 13. The Clerk’s Office is instructed to ENTER FINAL JUDGMENT accordingly and to CLOSE this case. 9 IT IS SO ORDERED. 10 DATED: May 17, 2024 1] A fe A SE 13 NANCY J. < me —_— 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28