Condit v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 24, 2022
• Docket: 4:21-cv-00205
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Robert Condit, No. CV-21-00205-TUC-CKJ

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Eric J. Markovich, pursuant to Rules 16 of Practice for the United States District Court, District of Arizona (Local Rules), LRCiv. 17 72.1(a). On July 25, 2022, he issued a Report and Recommendation (R&R). (Doc. 33.) He 18 recommends that Court affirm the decision by the Commissioner of Social Security 19 denying Plaintiff disability benefits. 20 The Commissioner found the Plaintiff has the following severe impairments: 21 coronary artery disease; hypertension; degenerative joint disease of the knees; degenerative 22 disc disease; neurocognitive disorder; and somatic disorder. At step five in the disability 23 determination, the Administrative Law Judge (ALJ) found the Plaintiff has the residual 24 functional capacity (RCF) to perform medium work, except he is limited to understanding, 25 remembering, and carrying out simple job instructions only. The ALJ concluded that 26 significant numbers of jobs exist in the national economy the Petitioner can perform, and 27 Plaintiff is not disabled. 28 1 The Plaintiff challenged the RFC as not being supported by substantial evidence and 2 as being the product of legal error. The Magistrate Judge rejected the Plaintiff’s arguments 3 and recommended this Court affirm the denial of benefits. For the reasons given below, the 4 Court adopts the recommendation of the Magistrate Judge, affirms the Commissioner’s 5 disability determination, and dismisses this action. 6 STANDARD OF REVIEW 7 The duties of the district court in connection with a R&R by a Magistrate Judge are 8 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 9 district court may “accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 11 636(b)(1). Where the parties object to a Report and Recommendation, “‘[a] judge of the 12 [district] court shall make a de novo determination of those portions of the [R&R] to which 13 objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 14 636(b)(1)). 15 This Court's ruling is a de novo determination as to those portions of the R&R to 16 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 17 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 18 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 19 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 20 waived if they are not filed within fourteen days of service of the R&R), see also McCall 21 v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 22 waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 23 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 24 objection is filed, the court need only satisfy itself that there is no clear error on the face of 25 the record in order to accept the recommendation)). 26 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 27 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 28 objecting to the recommended disposition has fourteen (14) days to file specific, written 1 objections). The Court has considered the objections filed by the Plaintiff, and the parties’ 2 briefs, including the ALJ’s decisions, considered by the Magistrate Judge in making his 3 recommendation to deny relief. 4 OBJECTIONS 5 The Plaintiff “reasserts and relies upon the arguments set forth in his Opening Brief. 6 (“Dkt. No. 25”) and objects to Magistrate Judge Markovich’s Report and Recommendation 7 that Plaintiff’s Social Security appeal be denied, and that judgment be entered in favor of 8 the Commissioner.” (Objection (Doc. 34) at 1.) The referral of a case to a magistrate judge, 9 with de novo review of any objections, is not a blanket do-over. The Court reviews, de 10 novo, the specific objections raised in the Plaintiff’s filing to support his assertions of error 11 by the Magistrate Judge. The Plaintiff objects to the Magistrate Judge’s findings, as 12 follows: 1) the ALJ properly evaluated the opinion evidence pertaining to his physical and 13 mental impairments; 2) the RFC is supported by substantial evidence, and 3) even if the 14 ALJ had incorporated additional limitations, Plaintiff could still do some work. 15 The Plaintiff argues: “The ALJ’s RFC was crafted out of whole cloth. After 16 rejecting the opinions discussed supra, and those of the agency consultants, she crafted 17 Plaintiff’s RFC without benefit of any opinion evidence. Absent adequate explanation of 18 the record, without specific support from a medical source, and with no testimony from a 19 medical expert, the ALJ appears to have defined her own limitations for Plaintiff. This is 20 error.” (Objection (Doc. 34) at 6.) 21 The Court finds that the Magistrate Judge correctly concluded the ALJ properly 22 evaluated the opinion evidence pertaining to his physical and mental impairments. Guided 23 by the citations of record provided by the ALJ in her decision, the Magistrate Judge found 24 no fault with her determinations regarding the persuasiveness of the various opinions. She 25 correctly concluded that the asserted severity of Plaintiff’s impairments, both mental and 26 physical, were contradicted by objective medical findings, medical history, and other 27 evidence, including the Plaintiff’s daily living activities. As the Magistrate Judge’s 28 summary of the record reflects, the medical opinion record includes findings to support the 1 ALJ’s conclusion that the Plaintiff functions, both physically and mentally, generally in 2 the normal range. It is not disputed that there is evidence in the record that Plaintiff is 3 impaired to some extent both physically and mentally. The Court notes that the ALJ’s first 4 decision, reversed by the Social Security Appeals Council, found claimant had the residual 5 functional capacity to perform light work, with physical limitations for lifting and carrying, 6 climbing, stooping, kneeling, etc. and could “fine feel” with his left non-dominate hand. 7 (Decision, February 14, 2020 (Doc. 21-4) at 106.) 8 On remand, the ALJ made a more exacting record of the medical opinion evidence, 9 highlighting those portions which reflected the severity of Plaintiff’s impairments. The 10 ALJ correctly based her assessments of persuasiveness on 20 C.F.R. § 416.920c(c)(1)-(5). 11 This requires medical opinions be evaluated based on factors of supportability and 12 consistency. Supportability provides the following standard: the more relevant the 13 objective medical evidence and supporting explanations presented by a medical source are 14 to support a medical opinion or administrative medical finding, the more persuasive is the 15 opinion. The “consistency” factor is similar: the more consistent a medical opinion or prior 16 administrative medical finding is with the evidence from other medical sources and non- 17 medical sources in the claim the more persuasive the medial opinion. The ALJ did not 18 commit legal error in applying these standards. She identified those medical opinions 19 reflecting the severity of Plaintiff’s impairments, both mental and physical, which she 20 found more persuasive than opinions she relied on in her original decision to conclude the 21 Plaintiff only had the physical capacity to perform light work. In both decisions, the ALJ 22 found the Plaintiff can understand, remember, and carry out simple job instructions only. 23 But in the October 22, 2020, decision, the ALJ found the Plaintiff could physically perform 24 medium work. The Court finds that the ALJ relied on the medical opinions where the 25 objective medical evidence and supporting explanations were most relevant to support the 26 medical opinion being given by the doctor and there was a consistency between multiple 27 opinions regarding the severity of the impairments.1

28 1 See examples: (R&R (Doc. 33) at 3-12 (summarizing medical opinion evidence, including: Dr. Marks’ opinion reflected on examination, Plaintiff was highly articulate and 1 After considering the record as a whole, including the Plaintiff’s symptom 2 testimony and his daily living activities, the ALJ concluded the claimant has the residual 3 functional capacity to perform medium work . . . , except he is limited to understanding, 4 remembering and carrying out simple job instructions only.” (Decision, 10/22/2022 (Doc. 5 21-3) at 22-23.) The RFC was not created out of “whole cloth” as asserted by the Plaintiff 6 in the Objection. The RFC is supported by substantial evidence, meaning such relevant 7 evidence as a reasonable mind might accept as adequate to support a conclusion. The 8 evidence, here, is more than a mere scintilla and it need not be a preponderance. Neither

9 able to provide a high level of detail regarding his history and level of intellectual functioning appeared above average; little evidence of forgetfulness during evaluation and 10 was able to stay on track and maintain focus; Dr. Rothbaum noted no substantial weakness in lefthand, clinical examination found no direct tenderness in lumbar, no anatomic 11 abnormality, no synovitis, grip and pinch strength 5/5 bilaterally, ulnar nerve function 5/5 bilaterally, able to cock both wrists back normally, etc., no sitting limitations, no limits on 12 reaching, handling, fingering, or feeling; Dr. Burridge found Plaintiff demonstrated skills and abilities required to perform work-related tasks from vocational standpoint, 13 understood, remembered, and carried out basic and multistep job instructions effectively, transitioned without difficulty between work-related tasks, maintained motivation, 14 responded appropriately to supervision, aptitude and ability to make simple judgments and basic work-related decisions; Dr. Menchola observed Plaintiff was alert and oriented; 15 hearing and vision adequate, expressive language fluent and coherent with no paraphasia word-finding difficulties or dysarthria, etc, and concluded testing was not valid 16 representation of current cognitive status, with the possibility that scores within normal limits might be an underestimate but reflected at least his lower limits of functioning, while 17 impaired scores could not be confidently interpreted; Plaintiff’s cognitive domain remained at least within normal limits; Dr. Ashish reported prior neuropsychological examination by 18 Dr. Rapcsak found Plaintiff oriented and able to remember 2/3 words after delay, demonstrated good recall of recent personal events but limited ability to remember public 19 events due to possible lack of interest, neurological exam otherwise unremarkable, some residual findings related to left ulnar neuropathy; Dr. Ashish observed no evidence of gait 20 or motor disturbance, hearing and vision were adequate, Plaintiff oriented to person, place, situation, and time, but had a tendency to give up and required prompting for date, speech 21 normal in rate, prosody, and volume but with response delays, comprehension for interview questions and evaluation instructions was adequate and Plaintiff was an adequate historian, 22 thought processes within normal limits except for judgment/insight appeared to be reduced into cognitive and psychological problems, attention was variable with slight impulsivity 23 and he was fidgety; Plaintiff’s performance was variable on independent and embedded performance validity measures, thus, the evaluation did not appear to be an accurate 24 representation of his current cognitive functioning and should be interpreted with a lot of caution.) 25 Compare: (R&R (Doc. 33) at 34 n. 12 (Dr. Rothbaum’s opinion reflected the Plaintiff could occasionally lift/carry up to 20 pounds and frequently lift/carry 10 pounds, 26 stand/walk at least 2–4 hours per day, had no sitting limitations, and no limitations on reaching, handling, fingering, or feeling; Dr. Goodman’s opinion reflected that Plaintiff 27 could frequently lift/carry 10 pounds and occasionally lift/carry 20 pounds; Dr. Coull opined that Plaintiff could use the left hand/arm 5% of the workday for fine manipulation 28 and 10% for grasping, turning, and twisting objects.) 1 the ALJ nor the Magistrate Judge cherry-picked the record. Both admit the record 2 contained evidence to support the Plaintiff’s claims of impairment. The ALJ appropriately 3 resolved the conflict in the record regarding the severity of Plaintiff’s impairments by 4 assessing supportability and comparability factors. “‘When the evidence before the ALJ is 5 subject to more than one rational interpretation, [the court] must defer to the ALJ’s 6 conclusion.’” (R&R (Doc. 33) at 20 (quoting Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 7 1190, 1198 (9th Cir. 2004)). “The ‘[ALJ] and not the reviewing court must resolve conflicts 8 in evidence, and if the evidence can support either outcome, the court may not substitute 9 its judgment for that of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1019 10 (9th Cir. 1992)) (cleaned up). 11 This brings the Court to the Plaintiff’s last objection, which is that the Magistrate 12 Judge improperly weighed the evidence of his own accord when he concluded that any 13 error by the ALJ was harmless. The Plaintiff refers to the Magistrate Judge’s finding that 14 even if the ALJ had incorporated additional limitations, Plaintiff could still do some work. 15 (Objection (Doc. 34) at 7-8.) The Court finds the Magistrate Judge did not weigh the 16 evidence; he simply drew a logical conclusion. After all, the ALJ’s original decision found 17 the Plaintiff was limited to light work when considering the physical limitations that the 18 Plaintiff charges the ALJ ignored in her second decision, but even then-- the ALJ still found 19 the Plaintiff was not disabled. The Vocational Expert testified at the original hearing, the 20 Plaintiff could perform other jobs such as office helper, information clerk, and mail room 21 clerk. (R&R (Doc. 33) at 35 n. 13.) In other words, the Plaintiff was still not disabled for 22 an award of benefits. 23 “‘A decision of the ALJ will not be reversed for errors that are harmless.’” (R&R 24 (Doc. 33) at 20 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (cleaned 25 up). “The claimant bears the burden to prove any error is harmful; an error is harmless 26 where it is inconsequential to the ultimate non-disability determination.” Id. (quotations 27 omitted). The Court agrees with the Magistrate Judge’s finding that any error was harmless 28 as between a finding that Plaintiff’s RFC limited him to moderate or light work. 1 The Court finds agrees with the Magistrate Judge that : the RFC was supported by || substantial evidence; the ALJ did not commit legal error, and any error was harmless. The 3 || Court must affirm the decision of the Commissioner of Social Security. 4 CONCLUSION 5 After de novo review of the issues raised in Plaintiff's Objection, this Court agrees 6 || with the findings of fact and conclusions of law made by the Magistrate Judge in the R&R. The Court adopts it, and for the reasons stated in the R&R, the Court affirms the decision 8 || of the Commissioner of Social Security. 9 Accordingly, 10 IT IS ORDERED that after a full and independent review of the record, in respect 11 || tothe objections, the Magistrate Judge's Report and Recommendation (Doc. 33) is accepted || and adopted as the findings of fact and conclusions of law of this Court. 13 IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED. 15 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment || against the Plaintiff on the Complaint (Doc. 1), accordingly, and close this case. 17 Dated this 23rd day of August, 2022. 18 1 Ce LE Aaegamses 20 Honorable Cin . J6fgenson United States District Judge 21 22 23 24 25 26 27 28

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