Hernandez v. Kijakazi

• Court: District Court, D. Nevada
• Decided: March 7, 2023
• Docket: 2:22-cv-01295
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 GABRIEL AGUSTIN HERNANDEZ, Case No. 2:22-cv-01295-NJK

7 Plaintiff, ORDER 8 v. 9 KILOLO KIJAKAZI, 10 Defendant. 11 This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 13 pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security 14 Act. Currently before the Court is Plaintiff’s motion to reverse or remand. Docket No. 21. The 15 Commissioner filed a response and cross-motion to affirm. Docket Nos. 23, 24. Plaintiff filed a 16 reply to the Commissioner’s response. Docket No. 25. 17 I. STANDARDS 18 A. Disability Evaluation Process 19 The standard for determining disability is whether a social security claimant has an 20 “inability to engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected to last for a continuous period of not less 22 than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That determination 23 is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses whether the claimant 25 is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b).1 The 26 second step addresses whether the claimant has a medically determinable impairment that is severe 27 1 The five-step process is largely the same for both Title II and Title XVI claims. For a Title 28 II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 or a combination of impairments that significantly limits basic work activities. 20 C.F.R. §§ 2 404.1520(c), 416.920(c). The third step addresses whether the claimant’s impairments or 3 combination of impairments meet or medically equal the criteria of an impairment listed in 20 4 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 5 416.920(d), 416.925, 416.926. There is then a determination of the claimant’s residual functional 6 capacity (“RFC”), which assesses the claimant’s ability to do physical and mental work-related 7 activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses whether the claimant 8 has the residual functional capacity to perform past relevant work. 20 C.F.R. §§ 404.1520(f), 9 416.920(f). The fifth step addresses whether the claimant is able to do other work considering the 10 residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 11 416.920(g). 12 B. Judicial Review 13 After exhausting the administrative process, a claimant may seek judicial review of a 14 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 15 denying benefits if the proper legal standard was applied and there is substantial evidence in the 16 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 17 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 18 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___ 19 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 20 high.” Id. 21 II. BACKGROUND 22 A. Procedural History 23 On March 9, 2020, Plaintiff filed an application for Social Security Disability Insurance 24 benefits pursuant to Title II and Supplemental Security Income pursuant to Title XVI of the Social 25 Security Act. Administrative Record (“A.R.”) 210-26. Plaintiff alleged a disability starting either 26 February 1 or February 7, 2017. A.R. 210, 216. Plaintiff’s initial application was denied on 27 September 25, 2020. A.R. 126-35. He then filed a request for reconsideration, A.R. 136-37, which 28 1 was denied, A.R. 138-45. On January 15, 2021, Plaintiff requested a hearing before an 2 Administrative Law Judge (“ALJ”) regarding his benefits determination. A.R. 146-47. 3 ALJ Cynthia Hoover held a hearing on June 9, 2021. A.R. 44-63. On August 3, 2021, the 4 ALJ issued a decision denying Plaintiff benefits. A.R. 21-36. Plaintiff subsequently filed a request 5 for review by the Appeals Council. A.R. 206-09. On June 22, 2022, the Appeals Council denied 6 Plaintiff’s request to review the ALJ’s decision, A.R. 1-4, making it the final decision of the 7 Commissioner. See 42 U.S.C. § 405(g). The instant case was filed on August 12, 2022. Docket 8 No. 1. 9 B. The Decision Below 10 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 11 C.F.R. § 416.920. A.R. 21-36. The ALJ first found that Plaintiff met the insured status 12 requirements through December 31, 2021. A.R. 23. At step one, the ALJ found that Plaintiff had 13 not engaged in substantial gainful activity from February 7, 2017, through the date of the opinion. 14 Id. At step two, the ALJ found that Plaintiff has the following severe impairments: plantar fasciitis, 15 hypertension, substance abuse disorder, schizophrenia, depression, anxiety, and post-traumatic 16 stress disorder. A.R. 24. At step three, the ALJ found that Plaintiff did not have an impairment 17 or combination of impairments that meets or medically equals the severity of one of the listed 18 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 24-26. The ALJ found that 19 Plaintiff has the residual functional capacity to perform medium work as defined by 20 C.F.R. § 20 404.1567(c) and 416.967(c) except that he can: (1) frequently climb ramps and stairs, stoop, kneel, 21 and crouch; (2) occasionally crawl; (3) frequently handle with the bilateral extremities; (4) 22 occasionally be exposed to concentrated extreme temperatures, vibration, and hazards like 23 unprotected heights and dangerous moving machinery like chainsaws and jackhammers; (5) 24 understand, remember, and carryout simple routine work in a well-spaced work environment with 25 occasional coordination with others; (6) occasionally have contact with the public, supervisors, 26 and coworkers; (7) have no fast-paced production quotas; and (8) never climb ladders. A.R. 26- 27 34. At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as a 28 clerk/cashier and a security guard. A.R. 34. At step five, the ALJ found that jobs exist in 1 significant numbers in the national economy that Plaintiff can perform, based on Plaintiff’s age, 2 education, work experience, and residual functional capacity. A.R. 34-35. The ALJ considered 3 the Medical Vocational Rules, which provide a framework for finding Plaintiff disabled or not. In 4 addition to considering the Medical Vocational Rules, the ALJ took testimony from a vocational 5 expert that an individual with the same residual functional capacity and vocational factors as 6 Plaintiff could perform work in cleaning positions and as a laborer of stores.2 A.R. 34-35. In 7 doing so, the ALJ noted that Plaintiff was defined as a younger individual age 18-49 on the alleged 8 disability onset date, but subsequently changed age category to closely approaching advanced age. 9 A.R. 34. The ALJ found that Plaintiff has a limited education and further found the transferability 10 of job skills to be immaterial. Id. Based on these findings, the ALJ found Plaintiff not disabled 11 from February 7, 2017, through the date of decision. A.R. 35-36. 12 III. ANALYSIS 13 Plaintiff raises one issue on appeal. He submits that the ALJ’s RFC determination is not 14 supported by substantial evidence because it deviates from the medical opinions in the record. 15 Docket No. 21 at 10-12. The Commissioner responds that the RFC is supported by substantial 16 evidence because the ALJ properly translated the ambiguous medical evidence in the record into 17 a concrete, vocationally relevant RFC. Docket No. 24 at 5-9. 18 “[R]esidual functional capacity is the most [Plaintiff] can still do despite [his] limitations.” 19 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC determination considers all medically 20 determinable impairments, including those that are not severe. Id. at §§ 404.1545(a), 416.945(a). 21 The RFC assessment must consider all evidence in the record and “contain a thorough discussion 22 of the objective medical and other evidence . . ..” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th 23 Cir. 2017) (citing Social Security Ruling 96-8p, 61 Fed. Reg 34474, 34478 (July 2, 1996)). “The 24 RFC is an administrative assessment of the extent to which an individual’s medically determinable 25 impairments … may affect his or her capacity to do work-related physical and mental activities.” 26 Id. (quoting SSR 96-8p, 61 Fed. Reg at 34475). “[A]t the administrative law judge hearing level 27 2 Though the ALJ did not list it in her opinion, the vocational expert also testified that 28 Plaintiff could perform work as a hand packager. A.R. 61. 1 … the administrative law judge … is responsible for assessing [Plaintiff’s] residual functional 2 capacity.” 20 C.F.R. §§ 404.1546(c), 416.946(c). The residual functional capacity determination 3 does not need to copy the exact opinion of any particular doctor, but “the ALJ is responsible for 4 translating and incorporating clinical findings into a succinct” residual functional capacity. 5 Rounds v. Commissioner, 795 F.3d 1177, 1185-86 (9th Cir. 2015), as amended, 807 F.3d 996, 6 1005-06 (9th Cir. 2015). 7 The RFC limits Plaintiff to “occasional” coordination and contact with others. A.R. 26. 8 Plaintiff submits this limitation is not supported by substantial evidence because the medical 9 opinions the ALJ found persuasive limited him to “minimal” contact and coordination with others. 10 Docket No. 21 at 11-12. Plaintiff’s argument is, at bottom, that the ALJ improperly translated the 11 medical opinions in the evidence into an RFC determination. 12 The Court finds no error in the ALJ’s RFC determination. In evaluating Plaintiff’s ability 13 to interact with others, the ALJ concluded that Plaintiff has a moderate limitation. A.R. 25. This 14 matches the social interactions limitations recognized by the state agency medical consultants. 15 A.R. 81, 105. The ALJ observed that Plaintiff’s limitations were substantially linked to his 16 substance abuse disorder and inconsistent medication intake. A.R. 25. Notably, the ALJ found 17 the state agency medical consultants’ opinions on Plaintiff’s substance abuse disorder non- 18 persuasive because those portions of the opinions were not consistent with the record and failed to 19 account for how Plaintiff’s substance abuse disorder evolved over time. A.R. 31. 20 “Occasionally” is defined by the Commissioner as “ occurring from very little up to one- 21 third of the time.” Social Security Ruling 83-10 (“SSR 83-10”), 1983 WL 31251, *5. Plaintiff 22 submits that the Commissioner’s reference to this definition, Docket No. 24 at 7-8, is erroneous 23 because it is from a ruling pertaining to exertional capacities, Docket No. 25 at 4. Plaintiff, 24 however, provides no definition from the Commissioner for “minimal.”3 See id. at 4-5. SSR 83- 25

26 3 Plaintiff does provide citations to various sections of the Programs Operations Manual System (“POMS”) and to Department of Labor definitions. Docket No. 25 at 4-7. None of the 27 cited POMS sections, however, provides a definition for “minimal.” See POMS 24510.060; 25020.010. Further, none of the cited POMS sections precludes the ALJ from using a term defined 28 in SSR 83-10 when crafting a mental capacity RFC. See id. 1] 10 was intended “to provide definitions of terms and concepts frequently used in evaluating 2} disability under the medical-vocational rules.” SSR 83-10, 1983 WL 31251, *1. That the rule 3} primarily provides exertional capacity examples to define terms instead of mental capacity 4] examples is inconsequential. 5 The fact that the ALJ’s RFC did not use the exact language of the state agency medical 6] consultant’s RFC does not create error. The ALJ conducts her review de novo, see 42 U.S.C. § 7} 421(c)(1); 20 C.F.R. § 404.946(a), and it is the ALJ who crafts the RFC at the hearing level, 20 8] C.F_R. §§ 404.1546(c), 416.946(c). Ninth Circuit case law recognizes that there “is a presumption 9} that ALJs are, at some level, capable of independently reviewing and forming conclusions about 10) medical evidence to discharge their statutory duty to determine whether a claimant is disabled and 11} cannot work.” Farlow v. Kijakazi, 53 F 4th 485, 488 (9th Cir. 2022). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (quoting Burch v. Barnhart, 400 F.3d 676, 14] 679 (9th Cir. 2005)). Here, the ALJ interpreted the evidence in the record to allow Plaintiff to have “occasional” contact with coworkers and the public. Notwithstanding any debates about the 16] synonymity of occasional and minimal, the Court finds that the ALJ’s RFC determination is 17| supported by substantial evidence. CONCLUSION 19 For the reasons discussed above, the Court DENIES Plaintiff’s motion to remand, Docket 20} No. 21, and GRANTS the Commissioner’s countermotion to affirm, Docket No. 23. The Clerk’s Office is instructed to enter final judgment accordingly and to close this case. 22 IT IS SO ORDERED. 23 Dated: March 7, 2023. 24 Lk \ Eo NANC OPPE 25 UNITED-STATES MAGISTRATE JUDGE 26 27 28