(SS) Shams v. Commissioner of Social Security

Opinion

NOORIZA SHAMS, No. 2:21-cv-01437 AC Plaintiff, v. ORDER KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f.1 For the reasons that follow, the court will grant plaintiff’s motion for summary judgment and deny the Commissioner’s cross-motion for summary judgment. //// ////

1 SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall below specified levels . . .”). Plaintiff applied for supplemental security income on February 14, 2019. Administrative Record (“AR”) 170.2 Plaintiff alleged the disability onset date was January 1, 2015. Id. The applications were disapproved initially (AR 84), and on reconsideration (AR 91). On November 24, 2020 ALJ Yvette Diamond presided over a hearing on plaintiff’s challenge to the disapprovals. AR 29-53 (transcript). Plaintiff was present and testified at the hearing through a Farsi interpreter. AR 29. She was represented by attorney Svetlana Kumansky at the hearing. Id. A vocational expert also testified at the hearing. Id. On January 19, 2021, the ALJ issued an unfavorable decision, finding plaintiff “not disabled” under Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 12-25 (decision), 27-29 (exhibits). On June 14, 2021, the Appeals Council denied plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-3 (decision). Plaintiff filed this action on August 11, 2021. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 11. The parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 17 (plaintiff’s summary judgment motion), 19 (Commissioner’s summary judgment motion), 21 (plaintiff’s response). Plaintiff was born in 1956 and was 64 years old as of the administrative hearing date. AR 34. Plaintiff was born in Afghanistan and came to the United States in 2014. Id. The Commissioner’s decision that a claimant is not disabled will be upheld “if it is supported by substantial evidence and if the Commissioner applied the correct legal standards.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).

2 The AR is electronically filed at ECF No. 12 (AR 1 to AR 316). Substantial evidence is “more than a mere scintilla,” but “may be less than a preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The court must consider both evidence that supports and evidence that detracts from the ALJ’s conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on evidence that the ALJ did not discuss”). The court will not reverse the Commissioner’s decision if it is based on harmless error, which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). //// Supplemental Security Income is available for every eligible individual who is “disabled.” 42 U.S.C. § 1381a. Plaintiff is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. § 1382c(a)(3)(A). The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine disability” under Title II and Title XVI). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 20 C.F.R. § 416.920(a)(4)(i), (b). Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, the claimant is not disabled. Id., § 416.920(a)(4)(ii), (c). Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. Id., § 416.920(a)(4)(iii), (d). Step four: Does the claimant’s residual functional capacity make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Id., § 416.920(a)(4)(iv), (e), (f). Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Id., § 416.920(a)(4)(v), (g). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 20 C.F.R. § 416.912(a) (“In general, you have to prove to us that you are blind or disabled”); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. V. THE ALJ’s DECISION The ALJ made the following findings: 1. [Step 1] The claimant has not engaged in substantial gainful activity since February 14, 2019, the application date (20 CFR 416.971 et seq.). 2. [Step 2] The claimant has the following severe impairments: degenerative joint disease, hypertension, diabetes mellitus, neuropathy, and headaches (20 CFR 416.920(c)). 3. [Step 3] 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 4. [Preparation for Step 4] After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c), except the claimant can lift and carry 50 pounds occasionally and 25 pounds frequently; stand or walk for six out of eight hours; and sit for six out of eight hours. The claimant can occasionally climb stairs, balance, stoop, kneel, crouch, and crawl, but cannot climb ladders. She can frequently finger. The claimant cannot have concentrated exposure to temperature extremes, vibrations, or hazards. 5. [Step 4] The claimant has no past relevant work (20 CFR 416.965). 6. [Step 5] The claimant was born [in 1956] and was 62 years old, which is defined as an individual closely approaching retirement age, on the date the application was filed (20 CFR 416.963). 7. [Step 5, continued] The claimant has at least a high school education (20 CFR 416.964). 8. [Step 5, continued] Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968). 9. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CF'R 416.969 and 416.969(a)). 10. The claimant has not been under a disability, as defined in the Social Security Act, since February 14, 2019, the date the application was filed (20 CFR 416.920(g)). AR 15-25. As noted, the ALJ concluded that plaintiff was “not disabled” under Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 25. Plaintiff alleges the ALJ erred in two ways: (1) incorrectly determining that plaintiff had a high school education; and (2) improperly evaluating lay and opinion evidence. ECF No. 17 at 5- 7. A. The ALJ Failed to Support the Determination Regarding Plaintiff’s Education Plaintiff alleges the ALJ incorrectly determined, without citing any supporting evidence, that plaintiff had at least a high school education when in fact plaintiff had a limited education. ECF No. 17 at 5. The Commissioner counters that the ALJ’s finding was supported by substantial evidence because plaintiff, through a representative, submitted reports stating she completed a GED in 1975. ECF No. 19 at 8, AR 186. The determination regarding plaintiff’s education level is material to the disability finding because, at ages 62–64 throughout, with more than one (five) medically severe impairment(s), no past relevant work, and a limited education, plaintiff would be found disabled. Rules 203.00(c)), 203.02, Medical-Vocational Guidelines; see Social Security Ruling 82–63.1. Though the ALJ is correct that a Disability Report submitted to the field office checked “GED” and listed a date of completion as 1975 (AR 186), this hearsay statement materially conflicts with plaintiff’s verbal testimony provided at the administrative hearing, where plaintiff stated she began twelfth grade in Afghanistan but did not complete the grade. AR 36-37. When specifically asked whether she had a GED, plaintiff answered “no.” AR 37. Plaintiff testified that “because of the war . . . sometimes I could attend school sometimes not[.]” AR 37. Given this testimony provided directly to the ALJ, the court cannot conclude that the ALJ’s finding that plaintiff “has at least a high school education” is supported by substantial evidence. AR 24. The ALJ made no effort to reconcile or explain the conflicting evidence in reaching this conclusion. This was error. B. Plaintiff’s Second Argument is Unclearly Presented Plaintiff’s second argument attacks the ALJ’s interpretation of the lay and opinion evidence. The motion references plaintiff’s testimony and her son’s testimony, as well as the opinion of a consultative examiner. ECF No. 17 at 7. However, while plaintiff argues generally that the conclusions were unsupported, the argument is convoluted and unclear as to the specific legal errors asserted. Id. at 6-7. Plaintiff has not met her burden as the moving party of establishing any error. C. Remand for Further Consideration is Necessary As discussed above, the ALJ erred in failing to support her finding regarding plaintiff’s level of education in the face of conflicting testimony and documentation. The undersigned agrees with plaintiff that the ALJ’s error is harmful and remand for further proceedings by the Commissioner is necessary. ECF No. 19 at 9. An error is harmful when it has some consequence on the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s error in this matter was harmful; correcting the error may very well result in a more restrictive residual functional capacity assessment, which may in turn alter the finding of non-disability. It is for the ALJ to determine in the first instance whether plaintiff has severe impairments and a limited education and, ultimately, whether she is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social Security Administration in the first instance, not with a district court”). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Further development of the record consistent with this order is necessary, and remand for further proceedings is the appropriate remedy. For the reasons set forth above, IT IS HEREBY ORDERED that: 1. Plaintiff’s motion for summary judgment (ECF No. 17), is GRANTED; 2. The Commissioner’s cross-motion for summary judgment (ECF No. 19), is DENIED; 3. The matter is REMANDED to the Commissioner for further proceedings consistent with this order; and //// ] 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. DATED: March 23, 2023 ~ AMhan—lThne ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 1]