1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ROBERT C., 8 Plaintiff, 9 2:22-cv-01617-VCF vs. 10 KILOLO KIJAKAZI, Acting Commissioner of Social Security, Order 11 Defendant. MOTION FOR REVERSAL OR REMAND [ECF NO. 12
12]; CROSS-MOTION TO AFFIRM [ECF NO. 14] 13 This matter involves Plaintiff Robert C.’s request for a remand of the Administrative Law Judge’s 14 (“ALJ”) final decision denying his social security benefits. Robert C. filed a motion for reversal or remand 15 and a reply. ECF Nos. 12, 16. The Commissioner filed a cross-motion to affirm and a response. ECF Nos. 16 14, 15. For the reasons stated below, I grant Plaintiff’s motion to remand and deny the Commissioner’s 17 cross-motion. 18 I. Background 19 Robert C. filed an application for a period of disability and disability insurance benefits on July 9, 20 2020, alleging disability commencing July 1, 2016. ECF No. 1 at 2. The ALJ followed the five-step 21 sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. § 404.1520. 22 The ALJ concluded Robert C. had not engaged in substantial gainful activity since the alleged onset date 23 24 25 1 1 of July 1, 2016, through December 31, 2018. AR1 at 28. The ALJ found Robert C. suffered from severe 2 impairments consisting of human immunodeficiency virus (HIV)/ acquired immunodeficiency syndrome 3 (AIDS); peripheral neuropathy; carpal tunnel syndrome (CTS); and cognitive impairment. Id. The ALJ 4 decided Robert C.’s impairments did not meet or medically equal the severity of one of the listed 5 impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id. at 29. The ALJ determined Robert C. had a 6 moderate limitation in understanding, remembering, or applying information. Id. at 30. The ALJ 7 determined Robert C. had a mild limitation in interacting with others; concentrating, persisting, or 8 maintaining pace; and adapting or managing oneself. Id. The ALJ found the severity of the claimant’s 9 mental impairment did not meet or medically equal the criteria of listing 12.02. Id. The ALJ determined 10 Robert C.’s residual functional capacity (RFC). The ALJ accessed Robert C. as retaining the residual 11 functional capacity to perform the demands of sedentary work, as defined in 20 C.F.R. § 404.1567(a), 12 except: 13 “he [is] not able to stand and/or walk for more than 30 minutes at one time; he is able to 14 occasionally climb ramps or stairs, balance, stoop, kneel, crouch and crawl but never climb ladders, 15 ropes or scaffolds; he is able to occasionally operate foot controls with his bilateral lower 16 extremities; he is able to frequently handle, finger and operate hand controls with his bilateral 17 upper extremities; he must avoid exposure to work at unprotected heights and more than occasional 18 exposure to moving mechanical parts, humidity, wetness, extreme heat, extreme cold, vibration 19 and no more than occasional concentrated exposure to dust, odors, fumes and other pulmonary 20 irritants; he is able to occasionally operate a motor vehicle; he is able to understand, remember and 21 carry out tasks that can be learned and mastered in three to six months and his time off task can be 22 accommodated by normal breaks.” AR 31. 23 24
25 1 The Administrative Record (“AR”) is found at ECF No. 9-1. 2 1 The ALJ concluded Robert C. was able to generally perform past relevant work as a travel clerk 2 that would not require work-related activities beyond Robert C.’s residual functional capacity. Id. at 37. 3 The ALJ based this finding on the vocational expert’s testimony stating if “an individual had the claimant's 4 residual functional capacity, such an individual could perform the claimant’s past relevant work as a travel 5 clerk.” Id. The ALJ concluded that the vocational expert’s testimony was consistent with the information 6 contained in the Dictionary of Occupational Titles (DOT). Id. The vocational expert used his professional 7 experience to testify on limitations not specifically addressed by the DOT, including time off task, 8 absenteeism, hand controls, foot controls, types of climbing, and the duration of walking. Id. Overall, the 9 ALJ concluded Robert C. was not under a disability, as defined in the Social Security Act, from July 1, 10 2016, the alleged onset date, through December 31, 2018. Id. at 38. 11 Robert C. challenges the ALJ’s conclusions on two grounds: 1) the ALJ failed to include a sitting 12 limitation to six hours in an eight-hour workday, and 2) the portion of the ALJ’s finding of residual 13 functional capacity stating Robert C. can understand, remember and carry out tasks that can be learned in 14 three to six months lacks the support of substantial evidence and rests on legal error. ECF No. 12 at 5, 11. 15 As I grant Robert C.’s motion to remand, I do not consider the first issue. 16 Robert C. argues the ALJ’s RFC lacks the support of substantial evidence and rests on legal error 17 because the ALJ created her own medical opinion when determining Robert C.’s functional limits caused 18 by his severe cognitive impairment. Id. at 11. Robert C. also argues the ALJ erred by not fully developing 19 the record by ordering a consultative examination, calling a medical expert to testify at the hearing, or 20 remanding the matter back to the State agency to make a new determination based on the subsequent 21 medical evidence. Id. at 12-13. Robert C. contends because the RFC is not based upon objective findings, 22 I should reverse and remand the case. Id. at 14. 23 The Commissioner argues that the ALJ’s decision is supported by substantial evidence. ECF No. 24 14 at 1. The Commissioner argues the ALJ accommodated Robert C.’s cognitive impairment with a 25 3 1 restriction that he could learn and master tasks within three months as the ALJ’s assessment was based 2 upon Robert C.’s mental status examinations. Id. at 8. The Commissioner also argues it is Robert C.’s 3 burden to prove he could not perform past relevant work. Id. at 7. 4 II. Discussion 5 a. Legal Standard 6 The Fifth Amendment prohibits the government from depriving persons of property without due 7 process of law. U.S. Const. amend. V. Social security claimants have a constitutionally protected property 8 interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319 (1976); Gonzalez v. Sullivan, 914 9 F.2d 1197, 1203 (9th Cir. 1990). When the Commissioner of Social Security renders a final decision 10 denying a claimant’s benefits, the Social Security Act authorizes the District Court to review the 11 Commissioner’s decision. See 42 U.S.C. § 405(g); 28 U.S.C. § 636(b) (permitting the District Court to 12 refer matters to a U.S. Magistrate Judge). 13 “On judicial review, an ALJ’s factual findings [are] ‘conclusive’ if supported by ‘substantial 14 evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019) (quoting 42 U.S.C. § 405(g)). The 15 substantial evidence threshold “is not high” and “defers to the presiding ALJ, who has seen the hearing 16 up close.” Id. at 1154, 1157; Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020) (quoting Biestek); see 17 also Valentine v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ROBERT C., 8 Plaintiff, 9 2:22-cv-01617-VCF vs. 10 KILOLO KIJAKAZI, Acting Commissioner of Social Security, Order 11 Defendant. MOTION FOR REVERSAL OR REMAND [ECF NO. 12
12]; CROSS-MOTION TO AFFIRM [ECF NO. 14] 13 This matter involves Plaintiff Robert C.’s request for a remand of the Administrative Law Judge’s 14 (“ALJ”) final decision denying his social security benefits. Robert C. filed a motion for reversal or remand 15 and a reply. ECF Nos. 12, 16. The Commissioner filed a cross-motion to affirm and a response. ECF Nos. 16 14, 15. For the reasons stated below, I grant Plaintiff’s motion to remand and deny the Commissioner’s 17 cross-motion. 18 I. Background 19 Robert C. filed an application for a period of disability and disability insurance benefits on July 9, 20 2020, alleging disability commencing July 1, 2016. ECF No. 1 at 2. The ALJ followed the five-step 21 sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. § 404.1520. 22 The ALJ concluded Robert C. had not engaged in substantial gainful activity since the alleged onset date 23 24 25 1 1 of July 1, 2016, through December 31, 2018. AR1 at 28. The ALJ found Robert C. suffered from severe 2 impairments consisting of human immunodeficiency virus (HIV)/ acquired immunodeficiency syndrome 3 (AIDS); peripheral neuropathy; carpal tunnel syndrome (CTS); and cognitive impairment. Id. The ALJ 4 decided Robert C.’s impairments did not meet or medically equal the severity of one of the listed 5 impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id. at 29. The ALJ determined Robert C. had a 6 moderate limitation in understanding, remembering, or applying information. Id. at 30. The ALJ 7 determined Robert C. had a mild limitation in interacting with others; concentrating, persisting, or 8 maintaining pace; and adapting or managing oneself. Id. The ALJ found the severity of the claimant’s 9 mental impairment did not meet or medically equal the criteria of listing 12.02. Id. The ALJ determined 10 Robert C.’s residual functional capacity (RFC). The ALJ accessed Robert C. as retaining the residual 11 functional capacity to perform the demands of sedentary work, as defined in 20 C.F.R. § 404.1567(a), 12 except: 13 “he [is] not able to stand and/or walk for more than 30 minutes at one time; he is able to 14 occasionally climb ramps or stairs, balance, stoop, kneel, crouch and crawl but never climb ladders, 15 ropes or scaffolds; he is able to occasionally operate foot controls with his bilateral lower 16 extremities; he is able to frequently handle, finger and operate hand controls with his bilateral 17 upper extremities; he must avoid exposure to work at unprotected heights and more than occasional 18 exposure to moving mechanical parts, humidity, wetness, extreme heat, extreme cold, vibration 19 and no more than occasional concentrated exposure to dust, odors, fumes and other pulmonary 20 irritants; he is able to occasionally operate a motor vehicle; he is able to understand, remember and 21 carry out tasks that can be learned and mastered in three to six months and his time off task can be 22 accommodated by normal breaks.” AR 31. 23 24
25 1 The Administrative Record (“AR”) is found at ECF No. 9-1. 2 1 The ALJ concluded Robert C. was able to generally perform past relevant work as a travel clerk 2 that would not require work-related activities beyond Robert C.’s residual functional capacity. Id. at 37. 3 The ALJ based this finding on the vocational expert’s testimony stating if “an individual had the claimant's 4 residual functional capacity, such an individual could perform the claimant’s past relevant work as a travel 5 clerk.” Id. The ALJ concluded that the vocational expert’s testimony was consistent with the information 6 contained in the Dictionary of Occupational Titles (DOT). Id. The vocational expert used his professional 7 experience to testify on limitations not specifically addressed by the DOT, including time off task, 8 absenteeism, hand controls, foot controls, types of climbing, and the duration of walking. Id. Overall, the 9 ALJ concluded Robert C. was not under a disability, as defined in the Social Security Act, from July 1, 10 2016, the alleged onset date, through December 31, 2018. Id. at 38. 11 Robert C. challenges the ALJ’s conclusions on two grounds: 1) the ALJ failed to include a sitting 12 limitation to six hours in an eight-hour workday, and 2) the portion of the ALJ’s finding of residual 13 functional capacity stating Robert C. can understand, remember and carry out tasks that can be learned in 14 three to six months lacks the support of substantial evidence and rests on legal error. ECF No. 12 at 5, 11. 15 As I grant Robert C.’s motion to remand, I do not consider the first issue. 16 Robert C. argues the ALJ’s RFC lacks the support of substantial evidence and rests on legal error 17 because the ALJ created her own medical opinion when determining Robert C.’s functional limits caused 18 by his severe cognitive impairment. Id. at 11. Robert C. also argues the ALJ erred by not fully developing 19 the record by ordering a consultative examination, calling a medical expert to testify at the hearing, or 20 remanding the matter back to the State agency to make a new determination based on the subsequent 21 medical evidence. Id. at 12-13. Robert C. contends because the RFC is not based upon objective findings, 22 I should reverse and remand the case. Id. at 14. 23 The Commissioner argues that the ALJ’s decision is supported by substantial evidence. ECF No. 24 14 at 1. The Commissioner argues the ALJ accommodated Robert C.’s cognitive impairment with a 25 3 1 restriction that he could learn and master tasks within three months as the ALJ’s assessment was based 2 upon Robert C.’s mental status examinations. Id. at 8. The Commissioner also argues it is Robert C.’s 3 burden to prove he could not perform past relevant work. Id. at 7. 4 II. Discussion 5 a. Legal Standard 6 The Fifth Amendment prohibits the government from depriving persons of property without due 7 process of law. U.S. Const. amend. V. Social security claimants have a constitutionally protected property 8 interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319 (1976); Gonzalez v. Sullivan, 914 9 F.2d 1197, 1203 (9th Cir. 1990). When the Commissioner of Social Security renders a final decision 10 denying a claimant’s benefits, the Social Security Act authorizes the District Court to review the 11 Commissioner’s decision. See 42 U.S.C. § 405(g); 28 U.S.C. § 636(b) (permitting the District Court to 12 refer matters to a U.S. Magistrate Judge). 13 “On judicial review, an ALJ’s factual findings [are] ‘conclusive’ if supported by ‘substantial 14 evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019) (quoting 42 U.S.C. § 405(g)). The 15 substantial evidence threshold “is not high” and “defers to the presiding ALJ, who has seen the hearing 16 up close.” Id. at 1154, 1157; Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020) (quoting Biestek); see 17 also Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009) (substantial evidence “is a highly deferential 18 standard of review”). The substantial evidence standard is even less demanding than the “clearly 19 erroneous” standard that governs appellate review of district court fact-finding—itself a deferential 20 standard. Dickinson v. Zurko, 527 U.S. 150, 152-53 (1999). “Where evidence is susceptible to more than 21 one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 22 676, 679 (9th Cir. 2005). 23 The District Court’s review is limited. See Treichler v. Comm'r of SSA, 775 F.3d 1090, 1093 (9th 24 Cir. 2014) (“It is usually better to minimize the opportunity for reviewing courts to substitute their 25 4 1 discretion for that of the agency”). The Court examines the Commissioner’s decision to determine whether 2 (1) the Commissioner applied the correct legal standards and (2) the decision is supported by “substantial 3 evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial 4 evidence is defined as “more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389, 401 5 (1971). Under the “substantial evidence” standard, the Commissioner’s decision must be upheld if it is 6 supported by enough “evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938) (defining “a mere scintilla” of evidence). If 8 the evidence supports more than one interpretation, the Court must uphold the Commissioner’s 9 interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 10 b. Analysis 11 i. The ALJ’s RFC is not supported by substantial evidence. 12 When determining the claimant’s capacity for work, the ALJ must assess all evidence including 13 the claimant’s statements, others’ descriptions of the limitations, and medical reports. 20 C.F.R. § 14 404.1545(a)(3) and 416.945(a)(3). “The ALJ is responsible for translating and incorporating clinical 15 findings into a succinct RFC.” Rounds v. Comm'r SSA, 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs- 16 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). Even though it is the ALJ’s responsibility to 17 determine the RFC, (20 C.F.R. § 1546(c)), the ALJ is still responsible for setting out “in the record his 18 reasoning and the evidentiary support for his interpretation of the medical evidence.” Tackett v. Apfel, 180 19 F.3d 1094, 1102 (9th Cir. 1999). 20 It is the ALJ’s “duty to fully and fairly develop the record and to assure that the claimant’s interests 21 are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 22 F.3d 1273, 1288 (9th Cir. 1996). If the record contains ambiguous evidence or the ALJ finds the record is 23 inadequate to allow for proper evaluation of the evidence, an ALJ must develop the record further. 24 Tonapetyan, 242 F.3d 1144 at 1150. This can be accomplished by “subpoenaing the claimant’s physicians, 25 5 1 submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after 2 the hearing to allow supplementation of the record.” Id. 3 An ALJ’s RFC must be supported by a medical opinion. E.g., Gregory J. v. Kijakazi, No. EDCV 4 21-00514, 2022 U.S. Dist. LEXIS 76442, at *9 (E.D. Cal. Sep. 18, 2020) (quoting Aliza W. v. Saul, 2021 5 U.S. Dist. LEXIS 141050, 2021 WL 3190902, at *4 (C.D. Cal. Jul. 28, 2021)). “It is well settled law that 6 an ALJ may not render her own medical opinion and is not empowered to independently assess clinical 7 findings.” Goolsby v. Berryhill, 2017 U.S. Dist. LEXIS 41660, 2017 WL 1090162, at *8 (E.D. Cal. Mar. 8 22, 2017); see also Gutierrez v. Kijakazi, No. 2:21-cv-01292-DJA, 2022 U.S. Dist. LEXIS 66403, at 9 (D. 9 Nev. Apr. 8, 2022) (“Generally, a lay person is not qualified to interpret raw medical data to determine a 10 claimant’s RFC unless the impairments are so mild that they pose no significant functional limitations.”); 11 Miller v. Astrue, 695 F. Supp 2d 1042, 1048 (C.D. Cal. 2010) (The ALJ is “simply not qualified to interpret 12 raw medical data in functional terms”). Therefore, an ALJ “must not succumb to the temptation to play 13 doctor and make [her] own independent medical findings.” Betten v. Saul, No. 2:18-cv-0536, 2019 U.S. 14 Dist. LEXIS 141730, at *2 (D. Nev. Aug. 20, 2019) (quoting Tackett v. Apfel, 180 F.3d 1094, 1102-03 15 (9th Cir. 1999)). 16 I find the ALJ’s RFC is not supported by substantial evidence. While the ALJ summarized medical 17 evidence, it is not entirely clear how the ALJ then translated that evidence into an RFC without a medical 18 opinion. State Agency physicians Gurpreet Chahal, MD and Tibor Toplensky, MD each conducted 19 disability determinations for Robert C. based on their review of the medical evidence and neither of the 20 determinations contain any medical opinions regarding Robert C.’s cognitive limitations. Id. at 88 - 105. 21 The ALJ based her finding of Robert C.’s ability to understand, remember, and carry out tasks that can be 22 learned and mastered in three to six months upon Robert C.’s testimony, treatment notes, and Montreal 23 Cognitive Assessment test results. AR 36. As the record reveals no opinion from any medical source 24 regarding Robert C.’s cognitive limitations, the ALJ instead interpreted medical data. 25 6 1 Pursuant to Gutierrez, an ALJ (who is a lay person) may not interpret medical data unless the 2 impairments are so mild that they pose no significant functional limitations. Here, the ALJ found Robert 3 C. suffered from a severe cognitive impairment. AR 28. As Robert C. suffers from a severe cognitive 4 impairment, the ALJ is not permitted to interpret medical data to determine Robert C.’s RFC. As the ALJ 5 must have a medical opinion to support findings in her RFC, the determination that Robert C. could 6 understand, remember, and carry out tasks that can be learned and mastered in three to six months lacks 7 the support of substantial evidence. ECF No. 12 at 11. 8 The Commissioner cites to Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022), where the Ninth 9 Circuit recognized when “evaluating the weight given to a non-examining, non-treating doctor’s 10 opinion… an ALJ ‘may reject the opinion of a non-examining physician by reference to specific evidence 11 in the medical record” because “[i]nherent in this standard is a presumption that ALJs are at some level, 12 capable of independently reviewing and forming conclusions. 53 F.4th 485, 488. However, unlike Farlow, 13 in this case the ALJ is not rejecting a medical opinion considering specific evidence but rather creating 14 her own medical opinion. This case is more like Goolsby, where the court held an ALJ’s RFC lacks the 15 support of substantial evidence, because the ALJ created their own opinion about the claimant’s mental 16 ability and no opinion existed in the record regarding the claimant’s mental abilities. 17 III. Remand 18 As the record reveals no opinion from any medical source regarding Robert C.’s cognitive 19 limitations, the ALJ erred when considering the record sufficiently complete, and instead interpreted raw 20 medical data. I find that the ALJ's RFC is not supported by substantial evidence. Since I remand this case 21 based on the issue of the RFC not being supported by substantial evidence, I do not reach whether the ALJ 22 failed to include a sitting limitation to six hours in an eight-hour workday. I remand this case to obtain 23 further functional evidence of Robert C.’s limitations imposed by his cognitive impairment. 24 Accordingly, 25 7 1 I order that plaintiff Robert C.’s motion for reversal or remand (ECF No. 12) is GRANTED and 2 the Commissioner’s cross-motion to affirm (ECF No. 14) is DENIED. 3 The Clerk of Court is directed to enter final judgment in favor of the plaintiff. 4 DATED this 8th day of September 2023. 5 _________________________ 6 CAM FERENBACH 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8