Curtis Richardson v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: November 3, 2023
• Docket: 2:23-cv-02177
• Status: Unknown

Opinion

1 2

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 CURTIS R.,1 Case No. 2:23-cv-02177-MAR 11 Plaintiff, 12 v. MEMORANDUM AND ORDER 13 KILOLO KIJAKAZI, Commissioner of 14 Social Security, 15 Defendant.

17 Plaintiff Curtis R. (“Plaintiff”) seeks review of the final decision of the 18 Commissioner of the Social Security Administration (“Commissioner” or “Agency”) 19 denying his application for Title XVI Supplemental Security Income (“SSI”). The 20 parties have consented to the jurisdiction of the undersigned United States Magistrate 21 Judge pursuant to 28 U.S.C. § 636(c). 22 For the reasons stated below, the Commissioner’s decision is AFFIRMED. 23 /// 24 /// 25 /// 26

27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 I. 2 PROCEDURAL HISTORY 3 On December 30, 2020, Plaintiff protectively filed an application for SSI, 4 alleging a disability onset date of February 9, 2017. Administrative Record (“AR”) at 5 10. Plaintiff’s application was denied initially on April 23, 2021, and upon 6 reconsideration on September 2, 2021. Id. On October 28, 2021, Plaintiff requested 7 a hearing before an administrative law judge (“ALJ”). Id. 8 On March 30, 2022, Plaintiff telephonically appeared with counsel before an 9 ALJ and testified at a hearing concerning his application. AR at 10, 38–49. A 10 vocational expert (“VE”) also testified. AR at 10, 45–47. On May 3, 2022, the ALJ 11 issued a decision denying Plaintiff’s application for SSI. AR at 20. Plaintiff filed a 12 request with the Appeals Council to review the ALJ’s decision. AR at 1. On February 13 13, 2023, the Appeals Council denied review. AR at 1–5. 14 On March 23, 2023, Plaintiff filed the instant action. ECF Docket No. 15 (“Dkt.”) 1. On July 26, 2023, Plaintiff filed their opening brief. Dkt. 12. Defendant 16 filed a brief in opposition. Dkt. 16. Thus, the matter stands submitted. 17 II. 18 PLAINTIFF’S BACKGROUND 19 Plaintiff was born on April 10, 1968. AR at 19. He was forty-nine (49) years 20 old at the time his disability began on February 9, 2017, and fifty-four (54) years old at 21 the time of the administrative hearing on March 30, 2022.2 AR at 19, 210. Plaintiff 22 completed tenth grade and had not worked in the fifteen (15) years prior to the 23 hearing. AR at 40. In his application, he alleged disability based on the following: 24 25 26 2 Accordingly, Plaintiff was considered a “younger person” on his disability on-set date and “an 27 individual closely approaching advanced age” at the date of his hearing. AR at 19, 210; see Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1069 (9th Cir. 2010) (explaining that 1 “Blind or low vision; Major Depressive Disorder w/ severe Psychotic Features; High 2 Blood Pressure; High Cholesterol.” AR at 51, 71, 111, 230. 3 III. 4 STANDARD FOR EVALUATING DISABILITY 5 To qualify for benefits, a claimant must demonstrate a medically determinable 6 physical or mental impairment that prevents him from engaging in substantial gainful 7 activity, and that is expected to result in death or to last for a continuous period of at 8 least 12 months. 42 U.S.C. § 423 (d)(1)(a); Reddick v. Chater, 157 F.3d 715, 721 9 (9th Cir. 1998). The impairment must render the claimant incapable of performing 10 the work he previously performed and incapable of performing any other substantial 11 gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 13 To decide whether a claimant is disabled, and therefore entitled to benefits, an 14 ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as 15 follows: 16 1. Is the claimant presently engaged in substantial gainful activity? If so, the 17 claimant is found not disabled. If not, proceed to step two. 18 2. Is the claimant’s impairment severe? If not, the claimant is found not disabled. 19 If so, proceed to step three. 20 3. Does the claimant’s impairment meet or equal one of the specific impairments 21 described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is 22 found disabled. If not, proceed to step four.3 23 4. Is the claimant capable of performing work she has done in the past? If so, the 24 claimant is found not disabled. If not, proceed to step five. 25 3 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s 26 [residual functional capacity],” or ability to work after accounting for her verifiable impairments. 27 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222–23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all 1 5. Is the claimant able to do any other work? If not, the claimant is found 2 disabled. If so, the claimant is found not disabled. 3 See Tackett, 180 F.3d at 1098–99; see also 20 C.F.R. §§ 404.1520(b)–(g)(1), 4 416.920(b)–(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001). 5 The claimant has the burden of proof at steps one through four, and the 6 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953–54. 7 Additionally, the ALJ has an affirmative duty to assist the claimant in developing the 8 record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his 9 burden of establishing an inability to perform past work, the Commissioner must 10 show that the claimant can perform some other work that exists in “significant 11 numbers” in the national economy, taking into account the claimant’s residual 12 functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. 13 §§ 404.1520(g)(1), 416.920(g)(1); Tackett, 180 F.3d at 1098–99, 1100; Reddick, 14 157 F.3d at 721. 15 IV. 16 THE ALJ’S DECISION 17 A. STEP ONE 18 At step one, the ALJ found that Plaintiff had not “engaged in substantial 19 gainful activity since December 30, 2020, the application date[.]” AR at 12. 20 B. STEP TWO 21 At step two, the ALJ found that Plaintiff had “the following severe 22 impairments: depression; and anxiety[.]” AR at 12. 23 C. STEP THREE 24 At step three, the ALJ found that Plaintiff did not “have an impairment or 25 combination of impairments that meets or medically equals the severity of one of the 26 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” AR at 14. 27 1 D. RFC DETERMINATION 2 The ALJ found that Plaintiff had the following RFC: 3 [T]o perform full range of work at all exertional levels but with the following nonexertional limitations: he can perform simple, routine, and 4 repetitive tasks, but not at production rate of pace, such as assembly line 5 work; he can make simple work-related decisions; he can occasionally manage changes in the work setting; he can occasionally make decisions; 6 and he can have occasional contact with supervisors and coworkers, but 7 he must never have contact with the general public. AR at 16. 8 E. STEP FOUR 9 At step four, the ALJ found that “[t]ransferability of job skills [was] not an 10 issue because the claimant does not have past relevant work (20 CFR 416.968).” AR 11 at 19. 12 F. STEP FIVE 13 The ALJ found that “[c]onsidering [Plaintiff]’s age, education, work experience, 14 and [RFC], there are jobs that exist in significant numbers in the national economy 15 that [Plaintiff] can perform.” AR at 19. With the assistance of the vocational expert’s 16 testimony, the ALJ found that Plaintiff could perform the following medium, 17 unskilled jobs: (1) cleaner II (DOT No. 919.687-014), (2) Furniture cleaner (DOT 18 No. 709.687-014), and (3) sweeper (DOT No. 389.683-010). AR at 20. Accordingly, 19 the ALJ concluded that Plaintiff was not disabled. Id. 20 V. 21 DISPUTED ISSUES 22 The parties present the following disputed issues: 23 (1) Whether the Commissioner failed to adequately evaluate Plaintiff’s claim of 24 being illiterate and a slow learner under SSR 16-3p? 25 (2) Whether the Commissioner failed to adequately consider the impact of Plaintiff’s obesity on his physical conditions as required by Social Security 26 Ruling 19-2p? 27 See Dkts. 12 at 1; 16 at 2. 1 VI. 2 STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner’s 4 decision to deny benefits. The ALJ’s findings and decision should be upheld if they 5 are free of legal error and supported by substantial evidence based on the record as a 6 whole. Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 7 746 (9th Cir. 2007). 8 “Substantial evidence” is evidence that a reasonable person might accept as 9 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 10 (9th Cir. 2007) (citing Robbins, 466 F.3d at 882). It is more than a scintilla but less 11 than a preponderance. Id. To determine whether substantial evidence supports a 12 finding, the reviewing court “must review the administrative record as a whole, 13 weighing both the evidence that supports and the evidence that detracts from the 14 Commissioner’s conclusion.” Reddick, 157 F.3d at 720; see also Hill v. Astrue, 698 15 F.3d 1153, 1159 (9th Cir. 2012) (“[A] reviewing court . . . may not affirm simply by 16 isolating a ‘specific quantum of supporting evidence’” (quoting Robbins, 466 F.3d at 17 882)). “If the evidence can reasonably support either affirming or reversing,” the 18 reviewing court “may not substitute its judgment” for that of the Commissioner. 19 Reddick, 157 F.3d at 720–21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 20 2012) (“Even when the evidence is susceptible to more than one rational 21 interpretation, we must uphold the ALJ’s findings if they are supported by inferences 22 reasonably drawn from the record”), superseded on other grounds 20 C.F.R. 23 § 404.1502(a). 24 The reviewing court may review only the reasons stated by the ALJ in his 25 decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 26 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 27 considered harmless if it is “clear from the record” that the error was “inconsequential 1 to the ultimate nondisability determination.” Robbins, 466 F.3d at 885 (citation 2 omitted). 3 VII. 4 DISCUSSION 5 A. THE ALJ ADEQUATELY EVALUATED PLAINTIFF’S OBESITY 6 AND THE IMPACT IT HAD ON HIS PHYSICAL CONDITIONS 7 1. ALJ decision The undersigned finds that the claimant’s medically determinable 8 impairment of obesity is nonsevere because, alone or in combination, it 9 does not significantly limit the claimant’s physical or mental ability to do basic work activities (see SSR 19-2p). In considering the claimant’s weight 10 over time, the claimant’s body mass index shows a consistent pattern of 11 obesity as evidenced by the claimant’s body mass index (BMI) of 31.72 (Ex. 13F/156). As required by SSR 19-2p, the undersigned has considered 12 all evidence from all sources, all symptoms that could limit functioning, 13 and any potential functional limitations in the claimant’s ability to do basic work activities resulting from obesity and from any other physical or 14 mental impairments. The undersigned finds that the claimant’s obesity, 15 alone or in combination, does not significantly limit the claimant’s physical or mental ability to do basic work activities. Therefore, the claimant’s 16 obesity is a nonsevere impairment. 17 AR at 12–13. 18 2. Applicable Law 19 While obesity is no longer listed among the Listing of Impairments, “the 20 functional limitations caused by the [medically determinable impairment] of obesity, 21 either alone or in combination with another impairment(s), may medically equal a 22 listing.” Social Security Ruling (“SSR”) 19-2p, 2019 WL 2374244, at *2 (May 20, 23 2019).4 “In evaluating obesity to determine a claimant’s RFC, the ALJ’s assessment 24

25 4 On May 20, 2019, the SSA rescinded and replaced its existing social security ruling governing 26 obesity, SSR 02-1p, with SSR 19-2p. See SSR 02–1p, 2002 WL 34686281; SSR 19-2p, 2019 WL 2374244, at *5 n.14. The SSA explained that SSR 19-2p applies “to new applications filed on or 27 after the applicable date of the SSR and to claims that are pending on or after the applicable date.” 2019 WL 2374244, at *5 n.14 (emphasis added). Because Plaintiff’s application was pending on May 1 ‘must consider an individual’s maximum remaining ability to do sustained work 2 activities in an ordinary work setting on a regular and continuing basis.’” Burch v. 3 Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (discussing SSR 02–1p, 2002 WL 4 34686281 (September 12, 2002)). “As with other impairments, the ALJ should 5 explain how [they] determined whether obesity caused any physical or mental 6 impairments.” Id. 7 3. Analysis 8 Plaintiff asserts that the ALJ’s “analysis is inadequate since it fails to discuss the 9 nature, severity and functional effects [of obesity] as required under Celaya v. Halter, 10 332 F.3d 1177 (9th Cir. 2003).” Dkt. 12 at 7. However, this case is distinguishable 11 from Celaya, where the ALJ failed to either explicitly or implicitly determine the effect 12 of obesity on the claimant’s ability to work, even in conjunction with other 13 impairments. 332 F.3d at 1182; see Tsosie v. Berryhill, 717 Fed. Appx. 680, 681 (9th 14 Cir. 2017). Here, unlike in Celaya, the ALJ’s opinion explicitly discussed Plaintiff’s 15 obesity at step two, when they found it to be non-severe, either alone or in 16 combination with other impairments. See AR at 12–13. Though the ALJ did not 17 explicitly discuss Plaintiff’s obesity again in formulating the RFC, it appears that the 18 ALJ may have implicitly considered potential limitations from Plaintiff’s obesity. At 19 the hearing, Plaintiff’s counsel argued that “due to obesity [Plaintiff] would be limited 20 to medium work at best . . . .” AR at 39. Despite finding that Plaintiff had the RFC 21 to perform work at all exertional levels, the ALJ, relying on the VE’s testimony, only 22 identified jobs in the medium exertion level that Plaintiff would be able to perform. 23 AR at 19–20. 24 In any case, here Plaintiff has failed to identify a specific functional limitation 25 caused by their obesity that the ALJ failed to account for. Absent any indication that 26 the ALJ failed to account for particular obesity-related evidence or limitations, 27 Plaintiff fails to demonstrate any error. See Valentine v. Comm’r Soc. Sec. Admin., 1 account for a claimant’s injuries “in some unspecified way” when the claimant did not 2 detail what other limitations flow from the evidence of his injuries, beyond the 3 limitations already listed in the RFC); Hoffman v. Astrue, 266 Fed. Appx. 623, 625 4 (9th Cir.2008) (ALJ’s failure to consider plaintiff’s obesity in relation to residual 5 functional capacity proper because plaintiff failed to show how obesity in 6 combination with another impairment increased severity of limitations); Tsosie, 717 7 Fed. Appx. at 682 (affirming ALJ’s consideration of claimant’s obesity where claimant 8 failed to show that ALJ “ignored any relevant evidence of obesity that could have 9 affected his [RFC] determination”); Burch, 400 F.3d at 684 (“[Plaintiff has not set 10 forth, and there is no evidence in the record, of any functional limitations as a result 11 of her obesity that the ALJ failed to consider.”); Maria C. R. v. Kijakazi, No. EDCV 12 21-1788-RAO, 2022 WL 16556019, at *5 (C.D. Cal. Oct. 31, 2022) (same; citing 13 Burch, 400 F.3d at 684). A such, the ALJ adequately evaluated Plaintiff’s obesity as it 14 was presented and the impact it had on Plaintiff’s physical condition. 15 B. THE ALJ DID NOT ERR IN EVALUATING PLAINTIFF’S 16 LITERACY 17 Here, it is not entirely clear whether Plaintiff is arguing that the ALJ should 18 have considered Plaintiff’s illiteracy as a separate impairment or that the ALJ erred in 19 finding that Plaintiff had a “limited education” for the purposes of determining what 20 jobs are available for Plaintiff to perform in the national economy. Dkt. 12 at 5. 21 1. Applicable law 22 “A claimant is not per se disabled if he or she is illiterate,” Pinto v. Massanari, 23 249 F.3d 840, 847 (9th Cir. 2001), however, a claimant’s educational level (including 24 whether a claimant is illiterate) is considered at step five of the sequential analysis. 20 25 CFR § 404.1564(b)(1). Pursuant to 20 CFR § 404.1564, the Social Security 26 Administration defines “illiteracy” as “the inability to read or write.” 20 CFR 27 § 404.1564(b)(1); see also Sanchez v. Colvin, No. CV 14-03641-JEM, 2014 WL 1 factor relevant only to the step five inquiry and not to the existence of a disability.”) 2 (citing Silveira v. Apfel, 204 F.3d 1257, 1261 n.14 (9th Cir. 2000)). A person is 3 considered illiterate “if the person cannot read or write a simple message such as 4 instructions or inventory lists even though the person can sign his or her name. 5 Generally, an illiterate person has had little or no formal schooling.” 20 CFR 6 § 404.1564(b)(1). By contrast, “limited education means ability in reasoning, 7 arithmetic, and language skills, but not enough to allow a person with these 8 educational qualifications to do most of the more complex job duties needed in semi- 9 skilled or skilled jobs.” 20 CFR § 404.1564(b)(3). The Social Security Administration 10 generally considers “that a 7th grade through the 11th grade level of formal education 11 is a limited education.” Id. Although a claimant’s formal schooling is not dispositive 12 when determining educational level or literacy, it is a factor to be considered. 20 CFR 13 § 404.1564(b). 14 2. Analysis 15 a. The ALJ did not err by failing to consider Plaintiff’s alleged 16 illiteracy as an impairment 17 The ALJ only focused on Plaintiff’s education as a vocational factor in step 18 five; however, Plaintiff in his Petition refers to “symptoms” and “diagnosis” of 19 illiteracy, and uses other language implying that the ALJ failed to consider Plaintiff’s 20 subjective complaints of illiteracy at step two when analyzing Plaintiff’s alleged 21 disabilities. Dkt. 12 at 4. To the extent Plaintiff is asserting the ALJ should have 22 evaluated his asserted “illiteracy and learning disability” sua sponte as a separate 23 impairment, and therefore considered Plaintiff’s testimony regarding the “symptoms” 24 of his illiteracy, Plaintiff’s argument fails. 25 Here, Plaintiff’s application only claimed disability based on “Blind or low 26 vision; Major Depressive Disorder w/ severe Psychotic Features; High Blood 27 Pressure; [and] High Cholesterol.” AR at 51, 230. Indeed, it was not until Plaintiff’s 1 asserted he was illiterate. AR at 40. However, at no time did Plaintiff, who was 2 represented by counsel at the hearing, argue that the illiteracy should be assessed as a 3 separate impairment or basis for a finding that Plaintiff was disabled. Given that 4 Plaintiff did not allege that illiteracy was a disabling impairment in his applications or 5 argue the issue before the ALJ, the ALJ’s failure to consider Plaintiff’s alleged illiteracy 6 as an impairment does not constitute error. See Greger v. Barnhart, 464 F.3d 968, 7 973 (9th Cir. 2006) (finding no error where ALJ did not consider plaintiff’s PTSD as a 8 basis for disability because plaintiff, represented by counsel, failed to raise claim 9 PTSD as a basis for disability prior to his appeal, and had therefore waived the issue); 10 Bowser v. Comm’r of Soc. Sec., 121 F. App’x 231, 236–37 (9th Cir. 2005) (finding 11 that the ALJ did not err in failing to account for the effects of an impairment when 12 the claimant did not allege the impairment in her disability application or raise the 13 issue before the ALJ, and noting “[t]o hold otherwise under these circumstances 14 would be tantamount to eviscerating Claimant’s burden of showing the presence of a 15 medically determinable impairment”); see also Price v. Berryhill, No. 16–CV–04624– 16 NJV, 2017 WL 4224923, at *6 (N.D. Cal. Sept. 22, 2017) (“Plaintiff has provided the 17 court with no authority stating that when determining severe impairments or making 18 the RFC assessment, the ALJ must consider conditions not identified in the 19 application for benefits. Plaintiff has therefore not shown legal error in the ALJ’s 20 failure to do so in this case.”). 21 b. The record substantially supports the ALJ’s determination 22 that Plaintiff was not illiterate 23 Plaintiff appears to argue that, in determining Plaintiff’s education level, the 24 ALJ should have considered him illiterate under 20 C.F.R. § 404.1564(b)(1), which 25 states that a person is illiterate “if the person cannot read or write a simply message 26 such as instructions or inventory lists even though the person can sign his or her 27 name.” However, the record does not support that Plaintiff would qualify as illiterate 1 least the last two (2) years in special education. AR at 231, 352, 376. In his 2 application Plaintiff asserted that he could read and write “simple messages such as a 3 shopping list or short and simple note.” AR at 231, 260, 262. Additionally, while 4 treatment notes mention that Plaintiff was illiterate, most of the notes do not define 5 the term or describe what parameters were used to measure Plaintiff’s literacy. AR at 6 403–404, 426, 429, 431, 433, 455, 474, 678, 757–760, 984, 1000. In fact, the one time 7 a medical note does discuss Plaintiff’s literacy in-depth, the note states: “Literacy level: 8 illiterate . . . Plaintiff has a fifth grade reading level and would like to improve it.” 9 AR at 479. Notably, this description would not meet the definition of illiterate under 10 20 C.F.R. § 404.1564(b)(1). Ultimately, on this record, substantial evidence supports 11 the ALJ’s finding that Plaintiff was not illiterate as defined by 20 CFR 12 § 404.1564(b)(1).5 13 C. ANY ERROR WAS HARMLESS 14 A decision of the ALJ will not be reversed for errors that are harmless. Stout v. 15 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch, 400 16 F.3d at 679). Legal errors are harmless if they are inconsequential to the nondisability 17 decision. Id. at 1055. Here, as discussed above, Plaintiff’s counsel argued at the 18 hearing that “due to obesity [Plaintiff] would be limited to medium work at best . . . .” 19 AR at 39. The VE also opined that Plaintiff could perform three (3) jobs at the 20 medium exertion level that “do not require any reading.” Id. at 46. As noted above, 21 the ALJ cited these specific jobs in finding that Plaintiff could perform work that 22 exists in significant numbers in the national economy and therefore was not disabled. 23 Accordingly, even assuming that the ALJ found Plaintiff to be illiterate and found 24 Plaintiff’s obesity limited him to performing medium work, as counsel argued, the 25 ALJ would likely have still found Plaintiff not disabled, given that the ALJ already 26

27 5 Beyond alleging he is illiterate; Plaintiff does not explicitly argue that the ALJ’s finding that Plaintiff 1 | found Plaintiff could perform jobs requiring only medium work that did not require 2 reading.” As such, any error from failing to find Plaintiff illiterate or more explicitly 3 | factor Plaintiff's obesity in the RFC was harmless. Accordingly, reversal is not 4 | warranted in Plaintiffs case. 5 VIII. 6 RECOMMENDATION 7 For the foregoing reasons, IT IS ORDERED that judgment be entered 8 | AFFIRMING the decision of the Commissioner. IT IS FURTHER ORDERED 9 | that the Clerk of the Court serve copies of this Order and the Judgment on counsel 10 | for both parties. 11 12 | Dated: November 3, 2023 13 HONORABLE MARGO A. ROCCONI United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 2%6 * Plaintiff's counsel did ask the VE about jobs with exertion levels more restrictive than medium; the VE testified that, at a level more restrictive then medium, an individual who could not read would 27 have no jobs available. AR at 46. However, Plaintiff does not now argue that the AL] should have limited him to light or sedentary work. In fact, as noted above, Plaintiff has not identified any 28 specific functional limitations implicated by his illiteracy or obesity that the ALJ failed to account for in constructing PlaintifPs RFC.