Butcher v. Saul

• Court: District Court, S.D. California
• Decided: September 19, 2019
• Docket: 3:18-cv-01956
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MARJORIE LEE BUTCHER, Case No.: 3:18-cv-01956-H-JLB

13 Plaintiff, ORDER: 14 (1) DENYING PLAINTIFF’S 15 v. MOTION FOR SUMMARY 16 JUDGMENT

[Doc. No. 24] 17 ANDREW SAUL, 18 Commissioner of Social Security1, (2) GRANTING DEFENDANT’S MOTION FOR SUMMARY 19 Defendant. JUDGMENT 20 [Doc. No. 27]

22 23 24

25 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See https://www.ssa.gov/agency/commissioner.html (last visited on September 6, 2019). The Court substitutes 26 Andrew Saul for his predecessor, Nancy A. Berryhill, as the defendant in this action. See Fed. R. Civ. P. 25(d); 42 U.S.C. § 405(g) (providing that “[a]ny action instituted in accordance with this subsection shall 27 survive notwithstanding any change in the person occupying the office of Commissioner of Social 28 Security or any vacancy in such office.”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the 1 On August 23, 2018, Plaintiff Marjorie Lee Butcher, a 56-year-old woman, filed a 2 complaint against Defendant Nancy A. Berryhill, the Acting Commissioner of Social 3 Security, seeking judicial review of an administrative denial of disability benefits under the 4 Social Security Act. (Doc. No. 1.) On December 21, 2018, the Acting Commissioner 5 answered Plaintiff’s complaint and lodged the administrative record. (Doc. Nos. 8, 9.) On 6 April 23, 2019, the Acting Commissioner lodged an Amended Administrative Record. 7 (Doc. No. 19.) On June 19, 2019, Plaintiff filed a motion for summary judgment, asking 8 the Court to reverse the Acting Commissioner’s final decision and remand for further 9 administrative proceedings. (Doc. No. 24.) On August 28, 2019, the Commissioner cross- 10 moved for summary judgment, asking the Court to affirm the Acting Commissioner’s final 11 decision. (Doc. No. 27.) On September 11, 2019, Plaintiff filed a reply to the 12 Commissioner’s Response. (Doc. No. 29.) On September 18, 2019, the Commissioner 13 responded to Plaintiff’s Reply. (Doc. No. 30.) For the reasons below, the Court GRANTS 14 the Commissioner’s motion for summary judgment and DENIES Plaintiff’s motion for 15 summary judgment. 16 BACKGROUND 17 On May 1, 2014 Plaintiff protectively filed a Title II and Title XVI application for a 18 period of disability insurance benefits alleging disability beginning September 30, 2012. 19 (Doc. No. 19, AR 17.) The Social Security Administration (“SSA”) initially denied 20 Plaintiff’s application for benefits on October 14, 2014 and denied reconsideration on 21 March 27, 2015. (Id.) Plaintiff requested a hearing before an Administrative Law Judge 22 (“ALJ”), which was held on May 28, 2015. (Id.) Plaintiff testified at the hearing and was 23 represented by counsel. (Id.) The ALJ also heard testimony from Bonnie Sinclair, an 24 independent vocational expert. (Id.) 25 On September 25, 2017, the ALJ issued a written decision, analyzing Plaintiff’s 26 claim and determining that Plaintiff had not met her burden of proof. (Id.) SSA regulations 27 require ALJs to use the following five-step inquiry when determining whether an applicant 28 qualifies for disability benefits: (1) has the claimant been gainfully employed since the time 1 of the disability onset date; (2) “is the claimant’s impairment severe”; 2 (3) “does the impairment ‘meet or equal’ one of a list of specific impairments described in 3 the regulations,” and if not, what is the claimant’s residual functional capacity (“RFC”)2; 4 (4) is the claimant capable of performing past relevant work; and (5) “is the claimant able 5 to do any other work.” Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); see 20 6 C.F.R. § 404.1520(a)(4)(i)–(v). 7 Here, the ALJ determined at step one that Plaintiff had not been gainfully employed 8 since the disability onset date of September 30, 2012. (Doc. No. 19, AR 20.) At step two, 9 the ALJ found that Plaintiff had the following severe impairment: degenerative disc disease 10 of the spine. (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment 11 or combination of impairments that amounted to one of the SSA regulations’ enumerated 12 impairments. (Id. AR 23–24.) The ALJ then determined that Plaintiff had a RFC to perform 13 the full range of “light work,” as defined in 20 C.F.R. 404.1567(b). (Id. AR 24.) At step 14 four, the ALJ determined that Plaintiff was capable of performing past relevant work as a 15 cashier or as a sales clerk. (Id. AR 28.) 16 Consequently, the ALJ determined that Plaintiff was not disabled from September 17 30, 2012, the alleged onset date, through December 31, 2014, the date last insured. (Id. AR 18 29.) On June 25, 2018, the Social Security Appeals Council denied Plaintiff’s request for 19 review, rendering the ALJ’s decision final. (Id. AR 1.) 20 LEGAL STANDARDS 21 I. The Social Security Administration’s Sequential Five-Step Inquiry 22 The SSA employs a sequential five-step evaluation to determine whether a claimant 23 is eligible for benefits under the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(i)–(v). 24 To qualify for disability benefits, a claimant must establish that he or she is “disabled,” 25 meaning that the claimant is unable “to engage in any substantial gainful activity by reason 26 27

28 2 SSA regulations define residual functional capacity as “the most you can still do despite your 1 of any medically determinable physical or mental impairment which can be expected to 2 result in death or which has lasted or can be expected to last for a continuous period of not 3 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see Johnson v. Shalala, 60 F.3d 1428, 4 1432 (9th Cir. 1995). 5 Step one in the sequential evaluation considers a claimant’s “work activity, if any.” 6 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). An ALJ will deny a claimant disability 7 benefits if the claimant is engaged in “substantial gainful activity.” Id. §§ 404.1520(b), 8 416.920(b). 9 If a claimant cannot provide proof of gainful work activity, the ALJ proceeds to 10 step two to ascertain whether the claimant has a medically severe impairment or 11 combination of impairments. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The so-called 12 “severity regulation” dictates the ALJ’s step-two analysis. Bowen v. Yuckert, 482 U.S. 13 137, 140–41 (1987). Specifically, an ALJ will deny a claimant’s disability claim if the 14 ALJ does not find that a claimant suffers from a severe impairment, or combination of 15 impairments, which significantly limits the claimant’s physical or mental ability to do 16 “basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). 17 If the impairment is severe, however, the evaluation proceeds to step three. At step 18 three, the ALJ determines whether the impairment is equivalent to one of several 19 enumerated impairments that the SSA deems so severe as to preclude substantial gainful 20 activity. Id. §§ 404.1520(d), 416.920(d). An ALJ conclusively presumes a claimant is 21 disabled if the impairment meets or equals one of the enumerated impairments. Id. 22 If the ALJ concludes that a claimant does not suffer from one of the SSA 23 regulations’ enumerated severe impairments, the ALJ must determine the claimant’s RFC 24 before proceeding to step four of the inquiry. Id. §§ 404.1520(e), 416.920(e). An 25 individual’s RFC is his or her ability to do physical and mental work activities on a 26 sustained basis despite limitations from his or her impairments. See id. §§ 404.1545(a)(1), 27 416.945(a)(1). The RFC analysis considers whether the claimant’s “impairment(s), and 28 any related symptoms, such as pain, may cause physical and mental limitations that affect 1 what [the claimant] can do in a work setting.” Id. In establishing a claimant’s RFC, the 2 ALJ must assess relevant medical and other evidence, as well as consider all of the 3 claimant’s impairments, including impairments categorized as non-severe. Id. 4 §§ 404.1545(a)(3)–(4), (e), 416.945(a)(3)–(4), (e). 5 Given the claimant’s RFC, the ALJ determines at step four whether the claimant 6 has the RFC to perform the requirements of his or her past relevant work. Id. 7 §§ 404.1520(f), 416.920(f). If a claimant has the RFC to carry out his or her past relevant 8 work, the claimant is not disabled. Id. Conversely, if the claimant does not have the RFC 9 to perform his or her past relevant work, or does not have any past relevant work, the 10 analysis presses onward. 11 At the fifth and final step of the SSA’s inquiry, the ALJ must determine whether 12 the claimant is able to do any other work in light of his or her RFC, age, education, and 13 work experience. Id. §§ 404.1520(a)(4)(v), (g)(1), 416.920(a)(4)(v), (g)(1). If the claimant 14 is able to do other work, the claimant is not disabled. Id. §§ 404.1520(a)(4)(v), 15 416.920(a)(4)(v). However, if the claimant is not able to do other work and meets the 16 duration requirement of twelve months, the claimant is disabled. Id. Although the claimant 17 generally continues to have the burden of proving disability at step five, a limited burden 18 shifts to the SSA, such that the SSA must present evidence demonstrating that other jobs 19 the claimant can perform—allowing for RFC, age, education, and work experience—exist 20 in significant numbers in the national economy. Tackett, 190 F.3d at 1099. 21 II. Standard of Review 22 Unsuccessful applicants for social security disability benefits may seek judicial 23 review of a Commissioner’s final decision in a federal district court. See 42 U.S.C. 24 § 405(g). “As with other agency decisions, federal court review of social security 25 determinations is limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 26 (9th Cir. 2014). The court will “disturb the Commissioner’s decision to deny benefits ‘only 27 if it is not supported by substantial evidence or is based on legal error.’” Id. (quoting 28 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “Substantial evidence means 1 more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Bray v. Comm’r of 3 Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews, 53 F.3d at 1039). 4 The Court must consider the record as a whole, weighing both the evidence that supports 5 and the evidence that detracts from the Commissioner’s determination. Garrison v. Colvin, 6 759 F.3d 995, 1009 (9th Cir. 2014). “Where the evidence as a whole can support either a 7 grant or a denial, [a court] may not substitute [its] judgment for the ALJ’s.” Bray, 554 F.3d 8 at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)). “The ALJ is 9 responsible for determining credibility, resolving conflicts in medical testimony, and for 10 resolving ambiguities.” Garrison, 759 F.3d at 1010 (quoting Shalala, 53 F.3d at 1039). 11 Even if the ALJ commits legal error, a reviewing court will uphold the decision 12 where that error is harmless—that is, where the error is “inconsequential to the ultimate 13 nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 14 (citation omitted). “[T]he burden of showing that an error is harmful normally falls upon 15 the party attacking the agency’s determination.” Id. at 1111 (quoting Shinseki v. Sanders, 16 556 U.S. 396, 409 (2009)). 17 “If the reviewing court determines that the agency erred in some respect in reaching 18 a decision to deny benefits, and the error was not harmless, sentence four of § 405(g) 19 authorizes the court to reverse the decision of the Commissioner of Social Security, with 20 or without remanding the cause for a rehearing.” Treichler v. Comm’r of Soc. Sec. Admin., 21 775 F.3d 1090, 1098 (9th Cir. 2014) (citations and alterations omitted). Sentence four of 22 42 U.S.C. § 405(g) states that “[t]he court shall have power to enter, upon the pleadings 23 and transcript of the record, a judgment affirming, modifying, or reversing the decision of 24 the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 25 42 U.S.C. § 405(g). “A sentence four remand has thus been characterized as essentially a 26 determination that the agency erred in some respect in reaching a decision to deny 27 benefits.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 28 1 DISCUSSION 2 Plaintiff contends that the ALJ improperly rejected the medical opinions of Drs. 3 Michael Fitzgerald Samuel Etchie. (Doc. No. 24-1.) The Commissioner argues that the 4 ALJ appropriately weighed the medical evidence in the record and that the ALJ’s final 5 decision was supported by substantial evidence. (Doc. No. 17-1.) Additionally, Plaintiff 6 contends that the ALJ failed to properly assess Butcher’s Title XVI Application. The Court 7 concludes that the ALJ appropriately weighed the medical evidence in the record and that 8 there is no Title XVI Application pending. 9 I. Dr. Fitzgerald and Dr. Etchie’s Medical Opinions 10 Plaintiff argues that the ALJ failed to properly credit the medical opinions of Drs. 11 Fitzgerald and Etchie. (Doc. Id. 24-1 at 17.) Defendant contends that the reports were 12 properly discounted because they were based on assessments that occurred after the last 13 date insured. (Doc. Id. 19-2 at 22.) 14 An ALJ must consider all evidence, including medical opinions, in determining 15 whether the claimant is disabled. See 20 C.F.R. § 416.920(b). Generally, the ALJ should 16 give more weight to a treating doctor’s opinion than to the opinion of a doctor who did 17 not treat the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Similarly, the 18 ALJ should give more weight to an examining doctor’s opinion than to the opinion of 19 a doctor who did not examine the claimant. Id. The ALJ must assign weight to medical 20 opinions according to several factors, including supportability of the opinion and 21 consistency with the record as a whole. See 20 C.F.R. § 416.927(c). When there is a 22 material conflict in the evidence, such as the presence of contradictory medical 23 evidence, only the ALJ can resolve it. See Vincent v. Heckler, 739 F.2d 1393, 1395 (9th 24 Cir. 1984). “The ALJ need not accept the opinion of any physician, including a treating 25 physician, if that opinion is brief, conclusory, and inadequately supported by clinical 26 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 27 Here, the Court concludes that the ALJ appropriately weighed Drs. Fitzgerald 28 and Etchie’s opinions in light of the other medical evidence in the record and supported 1 its ultimate decision with substantial additional evidence. It is determinative that both 2 Drs. Etchie and Fitzgerald evaluated Butcher years after the last date insured. As a 3 result, the ALJ did not err in discounting their medical opinions since they had little

4 bearing on whether Butcher had a disability prior to the last date insured. Vincent ex 5 rel. Vincent v. Heckler, 739 F. 2d 1393, 1395 (9th Cir. 1984) (“After-the-fact psychiatric 6 diagnoses are notoriously unreliable.”) 7 But even if one was to give full weight to Drs. Fitzgerald and Etchie’s opinions 8 the ALJ, in its thoroughly reasoned decision, pointed to a variety of other factors that 9 mitigated against a finding of disability including: (1) Plaintiff’s inconsistent statements 10 that she quit working in 2012 to care for her elderly mother and because there wasn’t 11 work available (2) evidence that Plaintiff continued to engage in the activities of daily 12 living (3) separate medical findings from Drs. Vu and Christian that Butcher possessed 13 the residual function capacity to engage in her prior occupation as a clerk (4) the fact 14 that Plaintiff drove cross country by herself to attend her son’s wedding in July of 2016 15 and (5) the lack of any medical testimony indicating the existence of an impairment 16 likely to produce disabling pain or other limitations from prior to the date last insured. 17 (Doc. Id. 19, AR 26-27.) These additional facts support the ALJs determination that 18 Butcher was not disabled before the last date insured. 19 Butcher ultimately bears the burden of establishing the existence of a severe 20 impairment, and ultimate disability, prior to the last date insured. See Tidwell v. 21 Apfel, 161 F.3d 599, 601 (9th Cir.1998); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 22 Cir.1995). Butcher failed to meet her burden since she was unable to show that any of 23 the impairments she was diagnosed with prior to her last date insured caused significant 24 limitations in her ability to work for twelve continuous months. 25 The documentary evidence and expert testimony in the record support the 26 decision of the ALJ that Butcher was not disabled prior to December 31, 2014. The 27 mere existence of impairments is not proof of a disability. See Matthews v. Shalala, 10 28 F.3d 678, 680 (9th Cir.1993). The claimant must also show that her problems were so 1 || functionally limiting as to prevent her from engaging in any substantial gainful activity 2 ||for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A); Flaten v. Sec'y 3 Health & Human Servs., 44 F.3d 1453, 1459 (9th Cir.1995); 20 C.F.R. § 404.1509 4 ||(2003). The Court finds that ALJ did not err in assessing the available medical evidence. 5 II. The Title XVI Application 6 Plaintiff erroneously argues that the ALJ’s determination was mistaken because it 7 || did not “address the SSI or Title XVI application at all.” (Doc. Id. 24-1 at 16.) However, 8 || after denial at reconsideration, Plaintiff requested an ALJ hearing on only her Title II claim. 9 ||(AR 124). Plaintiff's inapposite citations to the administrative record do not support her 10 || position. Consequently, the only application at issue in this case is Plaintiffs Title I 11 application and the only relevant period at issue is from alleged onset date of September 12 || 30, 2013 through her date last insured December 31, 2014. See 20 C.F.R. § 404.315(a)(1)- 13 14 CONCLUSION 15 For the foregoing reasons, the Court GRANTS the Commissioner’s motion for 16 |}summary judgment and DENIES Plaintiff's motion for summary judgment. 17 18 IT IS SO ORDERED. 19 || DATED: September 19, 2019 20 dual HUFF, a bo 21 UNITED STATES DISTRICT COURT 22 23 24 25 26 27 28