Irizarry v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 11, 2024
• Docket: 3:22-cv-01423
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10 AIDA I., Case No. 22-cv-1423-DEB 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION FOR SUMMARY 13 JUDGMENT AND GRANTING MARTIN O’MALLEY, Acting DEFENDANT’S CROSS-MOTION 14 C ommissioner of Social Security,1 FOR SUMMARY JUDGMENT 15 Defendant. [DKT. NOS. 18, 20] 16 17 18 I. Introduction 19 Plaintiff Aida I. seeks judicial review of the Commissioner of Social Security’s 20 denial of her application for disability benefits. Dkt. No. 1.2 The parties filed cross- 21 motions for summary judgment, and Plaintiff filed a reply. Dkt. Nos. 18, 20–21. 22 For the reasons discussed below, the Court DENIES Plaintiff’s Motion for 23 Summary Judgment (Dkt. No. 18), GRANTS Defendant’s Cross-Motion for 24 Summary Judgment (Dkt. No. 20), and REMANDS this matter for further 25

26 1 Martin O’Malley is substituted for Kilolo Kijakazi pursuant to Fed. R. Civ. P. 25(d).

27 2 In the interest of privacy, this Order uses only the first name and the initial of the 28 last name of the non-governmental party in this case. 1 proceedings.

2 II. Procedural Background

3 Plaintiff applied for disability insurance benefits and Supplemental Security

4 Income under Title II and Title XVI of the Social Security Act, alleging disability

5 beginning April 1, 2014. AR 110.3 The Social Security Administration denied 6 Plaintiff’s application initially and on reconsideration. Id. Plaintiff requested and 7 received an Administrative Law Judge (“ALJ”) hearing, after which the ALJ issued 8 a written decision finding Plaintiff not disabled. AR 107–21. The Appeals Council 9 denied Plaintiff’s request for review. AR 1–7. 10 Plaintiff then filed suit in this Court, which reversed the ALJ’s decision and 11 remanded for further proceedings. AR 1751–52; Aida I. v. Saul, No. 19-cv-0476- 12 AJB-RNB, 2020 WL 1905356, at *1 (S.D. Cal. Apr. 17, 2020). 13 On remand, the Appeals Council assigned a different ALJ to conduct a new 14 hearing. AR 1655. Following the hearing, the new ALJ found Plaintiff not disabled. 15 AR 1652–70. The Appeals Council denied Plaintiff’s request for review (AR 1645– 16 51), and this case followed. 17 III. Summary of the ALJ’s Decision 18 The ALJ’s decision on remand followed the five-step sequential evaluation 19 process. See 20 C.F.R. §§ 404.1520, 416.920. 20 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 21 activity since April 1, 2014, the alleged onset date. AR 1658. 22 At step two, the ALJ found Plaintiff had the following medically determinable 23 severe impairments: asthma; degenerative joint disease of the right shoulder, hands, 24

25 3 “AR” refers to the Administrative Record lodged on January 25, 2023. Dkt. Nos. 26 13–15. The Court’s citations to the AR use the page references on the original document rather than the page numbers designated by the Court’s case 27 management/electronic case filing system (“CM/ECF”). For all other documents, the 28 Court’s citations are to the page numbers affixed by CM/ECF. 1 and knee; low back impairment, status post fusion surgery; and plantar fasciitis,

2 status post-surgery. Id.

3 At step three, the ALJ found Plaintiff did not have an impairment or

4 combination of impairments that met or medically equaled a listed impairment in 20

5 C.F.R. pt. 404, subpt. P, app. 1. AR 1661. 6 Before proceeding to step four, the ALJ found Plaintiff had the residual 7 functional capacity (“RFC”): 8 to perform light work . . . except limited to occasional postural activity; 9 no climbing of ladders or scaffolds; occasional overhead reaching; 10 frequent reaching below shoulder level, handling and fingering; avoid concentrated exposure to extreme cold, vibration and pulmonary 11 irritants or hazards; mild limitations in all areas of mental functioning; 12 could do detailed or complex despite variable mood and affect; intact orientation, behavior, speech, behavior, thought, memory, intellect, 13 concentration, alertness, insight and judgment; mild limitations in 14 understand, remember, or apply information; mild limitations in interacting with others; mild limitations in maintain concentration, 15 persistence and pace; mild limitation in adapt and manage oneself. 16 AR 1662 (missing words in original). 17 At step four, the ALJ found Plaintiff could perform her past relevant work as 18 a loan officer and retail sales clerk. AR 1668. The ALJ, therefore, concluded Plaintiff 19 was not under a disability between April 1, 2014 and March 10, 2019. AR 1669. 20 IV. Standard of Review 21 The Court reviews the ALJ’s decision to determine whether the ALJ applied 22 the correct legal standards and whether the decision is supported by substantial 23 evidence. 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214–15 (9th Cir. 24 2005). Substantial evidence is “such relevant evidence as a reasonable mind might 25 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 26 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 27 It is “more than a mere scintilla, but less than a preponderance . . . .” Garrison v. 28 1 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d

2 1028, 1035 (9th Cir. 2007)). The Court may not impose its own reasoning to affirm

3 the ALJ’s decision. Garrison, 759 F.3d at 1010. The Court “must consider the entire

4 record as a whole and may not affirm simply by isolating a ‘specific quantum of

5 supporting evidence.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting 6 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[I]f evidence exists 7 to support more than one rational interpretation, [the Court] must defer to the [ALJ’s] 8 decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 9 2004). Furthermore, the Court will not reverse for harmless error. Marsh v. Colvin, 10 792 F.3d 1170, 1173 (9th Cir. 2015) (“ALJ errors in social security cases are harmless 11 if they are ‘inconsequential to the ultimate nondisability determination’ . . . .”) 12 (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)). 13 V. Discussion 14 The parties agree the ALJ erred in discounting Plaintiff’s subjective symptom 15 testimony, and remand is necessary. Dkt. No. 18 at 7–10, Dkt. No. 20 at 4–9. But 16 they dispute whether the Court should remand for further proceedings or a direct 17 award of benefits. Compare Dkt. No. 18 at 5, 9–10 with Dkt. No. 20 at 4–9, 11. 18 According to Plaintiff, if the Court were to credit her testimony as true, it would find 19 her disabled because “she could not perform any of her past work and she would grid 20 out at all relevant periods.” Dkt. No. 18 at 9. The Commissioner argues remanding 21 for further proceedings is necessary because the “record is not ‘free from conflicts 22 and ambiguities,’” and there are “serious doubts as to whether Plaintiff was actually 23 disabled.” Dkt. No. 20 at 7, 9. The parties further disagree regarding whether the ALJ 24 erred in finding Plaintiff can perform past relevant work (“PRW”) as a loan officer. 25 Compare Dkt. No. 18 at 5–7 with Dkt. No. 20 at 9–11. Specifically, the parties 26 27 28 1 disagree whether Plaintiff performed the work long enough to learn it. Id.4

2 As discussed below, the Court does not reach Plaintiff’s PRW argument.

3 Additionally, the Court does not find the credit-as-true conditions met and, therefore,

4 remands for further proceedings.

5 A. Plaintiff’s Past Relevant Work 6 Plaintiff argues the ALJ erred in finding she could perform PRW as a loan 7 officer because she did not perform the job long enough to learn it. Dkt. No. 18 at 5– 8 7. Because the Court is remanding for the ALJ to reassess Plaintiff’s subjective 9 symptom testimony and, in turn, Plaintiff’s RFC and the step-four and step-five 10 determinations, the Court does not reach this issue. See, e.g., Hiler v. Astrue, 687 11 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the 12 reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”). On 13 remand, should the ALJ again find Plaintiff can perform PRW as a loan officer, the 14 ALJ must develop the record to ensure it qualifies as PRW. The current record is 15 unclear whether Plaintiff worked as a loan officer for over two years. See Dictionary 16 of Occupational Titles (“DOT”) 186.267.018 (describing the loan officer position as 17 requiring a Specific Vocational Preparation (“SVP”) of 7); see also DOT Appendix 18 C (SVP 7 means over two years of training and up to and including four years). 19 B. Remanding for Further Proceedings 20 The Court next addresses the scope of remand. Under the Social Security Act, 21 “courts are empowered to affirm, modify, or reverse a decision by the Commissioner 22 ‘with or without remanding the cause for a rehearing.’” Garrison, 759 F.3d at 1019 23 (quoting 42 U.S.C. § 405(g)). Although a court should generally remand to the 24 agency for additional investigation or explanation, a court may, in “rare 25 26 4 The Commissioner concedes the ALJ erred in finding Plaintiff could perform PRW 27 as a retail sales clerk. Dkt. No. 20 at 10. 28 1 circumstances,” remand for an immediate payment of benefits. Treichler v. Comm’r

2 of Soc. Sec. Admin., 775 F.3d 1090, 1099–1100 (9th Cir. 2014).

3 The Ninth Circuit has established a three-step “credit-as-true” rule for deciding

4 whether to remand a case for an award of benefits: (1) the ALJ failed to provide

5 legally sufficient reasons for rejecting claimant testimony or medical opinion 6 evidence; (2) the record is fully developed and further administrative proceedings 7 would serve no useful purpose; and (3) if the improperly discredited evidence were 8 credited as true, the ALJ would be required to find the claimant disabled on remand. 9 Garrison, 759 F.3d at 1020 (citations omitted). Even if all three steps are satisfied, 10 courts maintain “‘some flexibility’” in whether to remand for an award of benefits. 11 Id. (quoting Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)); see also 12 Treichler, 775 F.3d at 1101–02 (“Of course, even when those ‘rare circumstances’ 13 are present, ‘[t]he decision whether to remand a case for additional evidence or 14 simply to award benefits is in our discretion[.]’”) (quoting Swenson v. Sullivan, 876 15 F.2d 683, 689 (9th Cir. 1989)). That is, where the “record as a whole creates serious 16 doubt that a claimant is, in fact, disabled[,]” courts must remand for further 17 proceedings even if all three conditions are met. Garrison, 759 F.3d at 1021. 18 Here, the Commissioner concedes the ALJ erred by improperly discounting 19 Plaintiff’s symptom testimony. Dkt. No. 20 at 4, 7. The first step of the three-part test 20 is, therefore, satisfied. 21 On the second step, however, outstanding issues remain and further 22 proceedings would be useful. As previously discussed, in reevaluating Plaintiff’s 23 subjective symptom testimony, the ALJ must reassess the RFC and, in turn, the step- 24 four and step-five determinations. It is unclear how Plaintiff’s testimony would 25 impact the RFC, and “it is up to the ALJ, not the court, to determine how these 26 impairments affect the formulation of [Plaintiff]’s RFC.” Dominguez v. Colvin, 808 27 F.3d 403, 409 (9th Cir. 2015), as amended (Feb. 5 2016) (citation omitted). 28 1 Additionally, there are gaps in the record regarding whether Plaintiff worked

2 as a loan officer for more than two years. The record shows Plaintiff worked as a loan

3 officer from 2001 through 2003, but the time she spent working each year is

4 unknown. See, e.g., AR 1888–89. For example, at the ALJ hearing, the ALJ asked

5 Plaintiff whether she worked as a loan officer for “about two years in duration[,] and 6 Plaintiff replied, “Yes, I worked as a loan officer[,]” but did not confirm the length 7 of time. AR 1691 (emphasis added). Later, in the same hearing, Plaintiff’s attorney 8 asked how long Plaintiff worked as a loan officer, and Plaintiff replied she did not 9 think she worked an entire year in 2001 and did not recall how long she worked in 10 2003 but thought it ranged between three-to-six months. AR 1701. Plaintiff further 11 testified she worked as a loan officer in 2002 but, again, did not specify the duration 12 (e.g., whether she worked the entire year). Id. Plaintiff’s counsel acknowledged this 13 gap in the record at the hearing. AR 1707 (Plaintiff’s counsel asked the ALJ whether 14 “we need any more evidence as far as whether [Plaintiff] did [the loan officer job] 15 for the full two years?”). These gaps make unclear whether Plaintiff, as she suggests, 16 is disabled pursuant to Grid Rule 202.04.5 17 18

19 5 Plaintiff’s argument focuses on the loan officer position requiring a Specific 20 Vocational Preparation (“SVP”) of 7, which requires more than two years of training. Dkt. No. 18 at 6–7. She also contends she “established at the [ALJ] hearing, through 21 the uncontroverted testimony of the vocational expert, that she did not have past 22 relevant work as a Loan Officer because she did not perform the job long enough to learn how to do it.” Id. at 5 (citing AR 1709). The VE initially testified Plaintiff could 23 perform PRW as a loan officer, AR 1703–05, but later testified Plaintiff “would not 24 be able to pursue employment as a loan officer given the rules today . . . . The position has been elevated to some degree and requires stronger background.” AR 1709. Aside 25 from citing to this page in the record, Plaintiff does not develop this argument. 26 Rather, she argues only that the ALJ erred in finding Plaintiff worked as a loan officer for more than two years. See Dkt. No. 18 at 6–7. The Court, therefore, addresses only 27 this issue. See Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th 28 Cir. 2003) (Courts cannot “manufacture arguments” for litigants.) (citation omitted). 1 Similarly, the ALJ did not make a step-five determination and “that

2 determination may need to be made in order to find Plaintiff disabled.” Best v.

3 Comm’r of Soc. Sec. Admin., No. CV-21-08021-PCT-DGC, 2022 WL 227094, at *12

4 (D. Ariz. Jan. 26, 2022). Further administrative proceedings will resolve these

5 outstanding issues. See Jordan v. Astrue, No. CV-10-8065-PHX-DGC, 2010 WL 6 4906635, at *3 (D. Ariz. Nov. 24, 2010) (finding a “remand for further proceedings, 7 including application of the vocational grids and step five evaluation, is 8 appropriate”); see also Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal 9 error, but the record is uncertain and ambiguous, the proper approach is to remand 10 the case to the agency.”). Because “such outstanding issues do exist,” the Court 11 cannot “proceed to the next question, whether the ALJ would be required to find 12 [Plaintiff] disabled” if Plaintiff’s testimony were credited as true. Dominguez, 808 13 F.3d at 409–10. It “cannot deem the erroneously disregarded testimony to be true; 14 rather, the [C]ourt must remand for further proceedings.” Id. at 409. 15 Finally, the Court is sympathetic to Plaintiff’s argument that nine years have 16 passed since she first applied for disability benefits, and the Commissioner should 17 not have a third attempt at remedying errors in the administrative proceedings. But 18 Ninth Circuit law is clear: “When there are outstanding issues that must be resolved 19 before a determination can be made, or if further administrative proceedings would 20 be useful, a remand is necessary.” Leon, 880 F.3d at 1047 (citation omitted); see also 21 Treichler, 775 F.3d at 1101 (“Where there is conflicting evidence, and not all 22 essential factual issues have been resolved, a remand for an award of benefits is 23 inappropriate.”).6 24 VI. Conclusion 25 Based on the foregoing, Court DENIES Plaintiff’s Motion for Summary 26 6 Even if the Court were to find all three conditions met, it would remand for further 27 proceedings because the “record as a whole creates serious doubt that [Plaintiff] is, 28 in fact, disabled.” Garrison, 759 F.3d at 1021. Judgment (Dkt. No. 18) and GRANTS Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 20). The Clerk of Court shall enter judgment accordingly. ° The Court REMANDS to the Commissioner for further consideration and development of the record in accordance with this Order. ° IT IS SO ORDERED. 6 7 | Dated: March 8, 2024 ~ . g lO Sn 9 Daniel E. Butcher 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28