Smith v. O' Malley

• Court: District Court, S.D. California
• Decided: January 22, 2024
• Docket: 3:22-cv-01139
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIE S., Case No.: 22-cv-1139-GPC-KSC

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR AN ORDER AFFIRMING FINAL 14 MARTIN O’MALLEY, Commissioner of DECISION OF THE Social Security, 15 COMMISSIONER OF SOCIAL Defendant. SECURITY 16

17 Plaintiff filed this action challenging the final decision of the Commissioner of 18 Social Security denying plaintiff’s claim for benefits. Doc. No. 1. Having reviewed the 19 parties’ briefing and the Administrative Record (“AR”), the Court RECOMMENDS the 20 District Court AFFIRM the decision of the Commissioner in this matter. 21 I. BACKGROUND 22 Plaintiff applied for Disability Insurance Benefits. AR 164-65.1 The Social Security 23 Administration denied the claim. AR 83-86. The Administration also denied plaintiff’s 24 claim upon rehearing. AR 88-92, 161-63. Plaintiff requested a hearing before an 25 26

27 1 The Court adopts the parties’ citations to the certified record in this matter. All other 28 1 Administrative Law Judge (“ALJ”). AR 99-100. Plaintiff, represented by counsel, 2 appeared before the ALJ. AR 32-50. Plaintiff testified at the hearing, and the ALJ received 3 testimony from a vocational expert. See id. After reviewing the documentary evidence in 4 the record and hearing the witnesses’ testimony, the ALJ concluded plaintiff was not 5 disabled. AR 28. 6 The ALJ’s decision followed the five steps prescribed by applicable regulations 7 under which the ALJ must sequentially determine (1) if the claimant is engaged in 8 substantial gainful employment; (2) whether the claimant suffers from a “severe” 9 impairment; (3) if any impairment meets or is medically equal to one of the impairments 10 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional 11 capacity (“RFC”) and whether the claimant can perform any past relevant work; and (5) 12 whether a claimant can make an adjustment to other work based on his or her RFC. See 20 13 C.F.R. § 404.1250(a)(4); AR 17-18. The ALJ’s evaluation ends if at any individual step 14 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4). 15 The ALJ first found plaintiff met the insured status requirements of the Social 16 Security Act through a “date last insured” (“DLI”) of December 31, 2024. AR 18. At step 17 one of the five-step process, the ALJ found plaintiff had not engaged in substantial gainful 18 activity since August 21, 2018, the alleged onset date. Id. At step two, the ALJ found 19 plaintiff had the following severe impairments: “traumatic brain injury (hereinafter ‘TBI’) 20 with residual neurocognitive disorder (post-concussion syndrome) and somatic disorder.” 21 Id. At step three, the ALJ found none of plaintiff’s impairments, alone or in combination, 22 met the severity of the listings. AR 19. At step four, the ALJ assessed plaintiff’s RFC and 23 found plaintiff could perform “light work,” but could not climb ladders, ropes or scaffolds; 24 and could not crawl or balance. AR 21. Plaintiff could “occasionally climb ramps and 25 stairs, stoop, kneel, and crouch.” Id. Plaintiff could not be exposed to “hazards such as 26 unprotected heights or dangerous moving machinery.” Id. Plaintiff could “understand, 27 remember, and carry out simple, routine, repetitive tasks, with no production quotas or 28 1 production line work.” Id. Finally, plaintiff was “unable to work at over a moderate level 2 of noise.” Id. 3 At step five, the ALJ concluded plaintiff could not perform past relevant work. AR 4 26. Given the plaintiff’s RFC, age, work experience, and education, the ALJ concluded 5 plaintiff could work as a mail room clerk, information clerk, or an office helper. Id. 6 Accordingly, the ALJ concluded plaintiff was not disabled. Id. The Appeals Council denied 7 plaintiff’s request for administrative review. AR 1-7. Plaintiff timely filed this lawsuit. 8 II. STANDARD OF REVIEW 9 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 10 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 11 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial 12 evidence standard, the Commissioner's findings are upheld if supported by inferences 13 reasonably drawn from the record, and if there is evidence in the record to support more 14 than one rational interpretation, the Court will defer to the Commissioner. Id. Even if the 15 ALJ makes an error, this Court can nonetheless affirm the denial of benefits if such error 16 was “harmless, meaning it was ‘inconsequential to the ultimate nondisability 17 determination.’” Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d 1035, 1038 (9th 18 Cir. 2008). 19 III. ANALYSIS OF THE COMMISSIONER’S DECISION 20 Plaintiff argues the ALJ failed to consider a functional capacity evaluation (FCE) 21 report, which had been “erroneously faxed to the hearing office with the wrong cover 22 sheet,” and thereby excluded from the record. Doc. No. 14 at 6. Plaintiff nonetheless 23 submitted the evidence—a report by Occupational Therapist Barbara Tourtellot—to the 24 Appeals Council. AR 1-2. The Appeals Council considered plaintiff’s evidence but 25 concluded there was not a “reasonable probability” that including the evidence would have 26 changed the outcome of the ALJ’s decision. AR 2. 27 “[W]hen the Appeals Council considers new evidence in deciding whether to review 28 a decision of the ALJ, that evidence becomes part of the administrative record, which the 1 district court must consider when reviewing the Commissioner's final decision for 2 substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th 3 Cir. 2012) (citing Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999)). A reviewing 4 court will consider “evidence submitted for the first time to the Appeals Council to 5 determine whether, in light of the record as a whole, the ALJ’s decision was supported by 6 substantial evidence.” Id. 7 The substance of the new evidence is as follows: Occupational Therapist Barbara 8 Tourtellot prepared the FCE at issue after interviewing plaintiff and subjecting plaintiff to 9 a four-hour examination designed to mimic the stresses of interviewing for and working in 10 an office job. See generally AR 1336-45. Although plaintiff generally had the physical 11 strength and dexterity to perform relevant work, OT Tourtellot concluded plaintiff’s 12 cognitive and visual impairments rendered her effectively incapable of working. AR 1343- 13 44. OT Tourtellot formed this conclusion after observing that 37 minutes of clerical work 14 caused plaintiff “eye fatigue” and “brain pain.” AR 1341. These symptoms made plaintiff 15 require a break “to allow her brain to ‘quiet down.’” AR 1342. After 2.5 hours of testing, 16 plaintiff was in “cognitive overload” due to her symptoms. Id. Transcribing documents 17 from paper into a computer caused plaintiff to “shut down” cognitively, such that her brain 18 was feeling “very slow,” and she suffered nausea from the strain of focusing on the 19 transcription. Id. Plaintiff also exhibited memory lapses and difficulty communicating. Id. 20 Trying to perform a math quiz while at the same time watching a video of a person speaking 21 caused plaintiff to become “very fatigued” due to the “cognitive and visual demand.” Id. 22 After having completed the four-hour examination, plaintiff reported increased cognitive 23 fatigue and discomfort lasting for several days. AR 1343. OT Tourtellot reasoned that, 24 because of plaintiff’s need for frequent breaks from sustained cognitive activity, plaintiff 25 could not work. See AR 1343-44. 26 The Court will first assess whether the omitted FCE added pertinent and/or new 27 information to the record that might have affected the ALJ’s decision. At the hearing before 28 the ALJ, plaintiff exhibited difficulty hearing loud noises without pain in her ears. AR 34. 1 She explained why she had stopped working, described her history of TBI, and testified 2 she “couldn’t complete” her work any longer. AR 42. Plaintiff testified she “lost the ability 3 to read, to basically analyze,” or “to use a computer.” Id. She testified to having “memory 4 problems” and “analytical problems.” Id. She testified she could not be in “noisy 5 environments” where there were multiple stimuli to process. AR 43. She testified that 6 focusing with her eyes on anything was “extremely fatiguing.” AR 44. She testified it was 7 “taxing” to sort information with her brain. Id. She testified her brain was “constantly 8 shutting down” throughout the day, which caused her to take recuperative breaks after even 9 just a few minutes of activity. AR 45. She testified that sustained cognitive ability could 10 overtax her brain, causing her to need up to “two-and-a-half weeks” to “decompress” and 11 regenerate her ability to focus. Id. She testified about her nausea. Id. She testified about her 12 inability to “process” information and about how it makes her life “slow.” AR 46. In his 13 decision, the ALJ took note of all these symptoms plaintiff identified at the hearing. AR 14 22. He also noted plaintiff’s disability and function reports corroborated this information. 15 Id.; see also AR 179-92; 208-19. 16 Based on this review of the record, the factual information about plaintiff’s 17 impairments contained in the FCE was duplicative of the information contained in 18 plaintiff’s treatment history and otherwise presented by plaintiff during the hearing. In fact, 19 many of the impairments self-identified by plaintiff were alleged to be more serious than 20 those identified by OT Tourtellot. For example, plaintiff’s testimony at the hearing 21 suggested she would need breaks to recuperate after only a few minutes of cognitive 22 activity, and her function report suggested she could only work in “small increments of 23 time” up to 10 or 15 minutes. AR 45, 214. OT Tourtellot noted plaintiff did not report 24 “brain fatigue” until half an hour of clerical activity, and she did not reach “cognitive 25 overload” until after 2.5 hours of testing. AR 1342-43. Thus, everything the ALJ would 26 have learned from OT Tourtellot’s report was already in the record, often to a more extreme 27 degree, and the missing report did not add anything of substance that could have changed 28 the ALJ’s analysis. 1 The Court will also consider whether the ALJ’s decision was otherwise supported 2 by substantial evidence. Brewes, 682 F.3d at 1163. As a threshold issue here, the Court 3 notes that claims not addressed in the plaintiff’s opening brief are forfeit. See Indep. Towers 4 of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Neither party adequately 5 addresses the substance of the ALJ’s decision other than to argue the error (or lack thereof) 6 flowing from the exclusion of the FCE. Plaintiff’s opening brief focuses solely on the 7 contents of the omitted FCE and how it is allegedly material to resolving plaintiff’s case 8 such that excluding the evidence was reversible error. Doc. No. 14 at 13-18. There is no 9 analysis of the other aspects of the ALJ’s decision. Defendant likewise focuses solely on 10 the excluded FCE, addressing the remainder of the ALJ’s decision only insofar as to note 11 plaintiff did not challenge any of the ALJ’s reasoning. See Doc. No. 16 at 2-4. The Court 12 concludes plaintiff’s failure to raise issues other than the exclusion of the FCE forfeit’s 13 plaintiff’s right to challenge other aspects of the ALJ’s decision. Because the Court has 14 concluded there was no error in excluding the FCE, this forfeiture presents a sufficient and 15 independent basis to affirm the final decision of the Commissioner in this matter. 16 Plaintiff nonetheless uses her reply brief to go beyond suggesting there was error in 17 the record because the FCE was not included or considered. She suggests the ALJ’s 18 decision was erroneous because the ALJ did not provide “germane” reasons to “discount” 19 the FCE. See Doc. No. 17 at 3-7. But this argument is circular as it begs the question of 20 whether the ALJ considered the FCE at all. Indeed, it is undisputed the ALJ did not 21 consider the FCE because plaintiff only submitted the evidence to the Appeals Council. 22 Thus, the Court’s review here is not focused on the ALJ’s decision to disregard the FCE 23 because there is nothing to review in that regard. Rather, as plaintiff concedes in her 24 opening brief, the Court considers whether substantial evidence supports the ALJ’s 25 decision, with due consideration to the evidence that was submitted for the first time to the 26 Appeals Council. See Doc. No. 14 at 12 (citing Brewes, 682 F.3d at 1163). 27 Although plaintiff forfeited any right to challenge the ALJ’s decision outside the 28 context of excluding the FCE, the Court will nonetheless review the substance of the 1 decision. The ALJ evaluated plaintiff’s medical history and concluded the medical 2 documents in the record established plaintiff’s disability was not so severe as alleged. AR 3 23. For example, Dr. John Montague examined plaintiff and prepared a “comprehensive 4 neuropsychological report” on September 11, 2018. AR 276. Dr. Montague subjected 5 plaintiff to a battery of tests. AR 281. Plaintiff “performed in the range typically expected 6 for age- and education-matched peers.” AR 282. Although it was difficult for Dr. Montague 7 to confirm whether plaintiff had any impairment caused by her TBI (as opposed to 8 preexisting impairments, if any), or whether her TBI had exacerbated any preexisting 9 conditions, his overall conclusion was that plaintiff “performed well within normal 10 expectations with no sign of impairment” in the areas most likely to be affiliated with mild 11 head trauma. AR 285. She had “normal” performance in “cognitive processing speed” and 12 other traits relevant to work such as “attention to visual detail” and “sequential reasoning.” 13 Id. This is substantial evidence supporting the ALJ’s conclusion that plaintiff was not 14 disabled. 15 The ALJ also evaluated the opinions of multiple consultative experts. See AR 25. 16 As the ALJ noted, multiple experts had concluded plaintiff was not impaired. See id. The 17 ALJ went so far as to partly reject the opinions of the consultative examiners who so 18 concluded because the ALJ weighed the evidence in the record as a whole and determined 19 plaintiff had at least some impairments, even if those impairments did not render plaintiff 20 completely disabled. Id. The Court therefore concludes the ALJ properly relied upon 21 substantial evidence showing plaintiff had the residual functional capacity to perform light 22 work. 23 The ALJ also considered plaintiff’s activities of daily living (“ADLs”) as part of the 24 decision. AR 24. Evidence related to a plaintiff’s ADLs is generally of limited probative 25 value because a plaintiff need not be confined to permanent bedrest to be deemed too 26 disabled to work. See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). As such, 27 evidence of an ability to engage in ADLs is only probative when it is “inconsistent” with a 28 plaintiff’s testimony or where it establishes skills that can readily be transferred to the 1 || workplace. Jd. Here, the record showed plaintiff was able to manage her own personal 2 finances and pay bills independently. AR 279, 1267. Although this is of limited probative 3 || value, it further bolsters the ALJ’s conclusion that plaintiff had sufficient cognitive ability 4 || to perform modified work within the scope of the ALJ’s decision. 5 As the Court has already noted, plaintiff forfeited the right to challenge the ALJ’s 6 || overall assessment by not making any substantive argument on the matter other than an 7 || offhand remark in her reply brief. Notwithstanding that independently sufficient ground to 8 ||affirm the final decision of the Commissioner, the Court has reviewed the ALJ’s 9 determination and concluded the ALJ relied upon substantial evidence showing plaintiff 10 || was not disabled. The FCE that was never considered by the ALJ does not rebut this 11 |}conclusion. Although the FCE suggests plaintiff was disabled, the Court must consider the 12 || whole record not only the evidence favorable to plaintiff. Here, because there was ample 13 || substantial evidence to support the ALJ’s decision, the ALJ’s decision stands as a rational 14 interpretation of the record as a whole and it should be affirmed. Batson, 359 F.3d at 1193. 15 IV. CONCLUSION, RECOMMENDATION, AND ORDER 16 There was no error in the Commissioner’s final decision. The Court accordingly 17 ||recommends the District Court AFFIRM the final decision of the Commissioner in this 18 |}matter. Any party may object to this Report and Recommendation on or before February 19 ||5, 2024. See Fed. R. Civ. P. 72(b)(2). Responses to any objections shall be filed on or 20 || before February 19, 2024. See id. 21 Dated: January 22, 2024 Jl. Ke

3 Hori. Karen 8S. Crawford United States Magistrate Judge 24 25 26 27 28