Wilson v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5

9 Marcea Wilson, No. CV-21-01866-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Marcea Wilson’s Application for Social Security 16 Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) 17 under the Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an 18 Opening Brief, (Doc. 10), seeking judicial review of that denial. The Commissioner of the 19 SSA (“Commissioner”) filed an Answering Brief (Doc. 13), to which Plaintiff replied 20 (Doc. 15). The Court has reviewed the parties’ briefs, the Administrative Record, (Doc. 21 9), and the Administrative Law Judge’s (“ALJ”) decision (Doc. 9-3 at 13–38), and will 22 vacate the ALJ’s decision in part and remand for further proceedings, for the reasons 23 addressed herein. 25 Plaintiff filed an Application for SSDI benefits in August 2017, alleging a disability 26 beginning in June 2010. (Doc. 9-3 at 16.) Plaintiff’s claim was initially denied in October 27 2017 and denied again upon reconsideration in February 2018. (Id.) An in-person hearing 28 was held in November 2019 before ALJ Earl Cates, and a second, supplemental telephone 1 hearing was held in May 2020. (Id. at 16.) During the May 2020 hearing, Plaintiff 2 amended her alleged disability date to June 3, 2016. (Id.) Another supplemental telephone 3 hearing was held before ALJ Patricia Bucci on April 20, 2021. (Id. at 16, 38.) After 4 considering the medical evidence and opinions, the ALJ determined that Plaintiff suffered 5 from severe impairments including multilevel degenerative disc disease with stenosis, 6 obesity, fibromyalgia, asthma, sleep apnea, depression, anxiety, post-traumatic stress 7 disorder, schizoaffective disorder, borderline intellectual functioning, ADHD, and opioid 8 dependence in reported remission. (Id. at 20–21.) However, the ALJ concluded that, 9 despite these impairments, Plaintiff had the residual functional capacity (“RFC”) to 10 perform light work. (Id. at 25.) Consequently, Plaintiff’s Application was again denied by 11 the ALJ on June 25, 2021. (Id. at 38.) Thereafter, the Appeals Council denied Plaintiff’s 12 Request for Review of the ALJ’s decision—making it the final decision of the SSA 13 Commissioner (the “Commissioner”)—and this appeal followed. (Id. at 2.) 15 An ALJ’s factual findings “shall be conclusive if supported by substantial 16 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 17 the Commissioner’s disability determination only if it is not supported by substantial 18 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 19 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 20 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 21 evidence is susceptible to more than one rational interpretation, one of which supports the 22 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 23 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, the district court 24 reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 25 236 F.3d 503, 517 n.13 (9th Cir. 2001). 27 Plaintiff argues that the ALJ committed harmful error in evaluating Plaintiff’s 28 symptom testimony, weighing the medical opinion evidence, and analyzing whether 1 Plaintiff was disabled under the Step 3 analysis. (Doc. 10 at 10, 14–15.) The 2 Commissioner argues that the ALJ’s opinion is supported by substantial evidence and free 3 of legal error. (Doc. 13 at 21.) The Court has reviewed the medical and administrative 4 records and agrees with the Plaintiff for the following reasons. 5 A. Plaintiff’s Symptom Testimony 6 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 7 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 8 ALJ evaluates whether the claimant has presented objective medical evidence of an 9 impairment that “could reasonably be expected to produce the pain or symptoms alleged.” 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 11 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)) (internal quotation marks omitted). Second, 12 absent evidence of malingering, an ALJ may only discount a claimant’s allegations for 13 reasons that are “specific, clear and convincing” and supported by substantial evidence. 14 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 15 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 16 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 17 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 18 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 19 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 20 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 21 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 22 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 23 instance, the ALJ may consider “whether the claimant engages in daily activities 24 inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter, 504 F.3d at 1040). 25 Plaintiff argues the ALJ improperly rejected her symptom testimony and 26 mischaracterized the evidence, including her difficulty finding words and having auditory 27 hallucinations. (Doc. 10 at 17, 19.) The Commissioner argues the ALJ correctly found 28 that Plaintiff’s statements about the intensity, persistence, and limiting effects of her 1 symptoms were inconsistent with the objective medical evidence. (Doc. 13 at 10.) 2 The ALJ noted that Plaintiff had mild, normal, or stable conditions. (See Doc. 9-3 3 at 33.) Plaintiff’s MRI’s showed mild or minimal spinal canal stenosis with some 4 improvement from treatment. (Doc. 9-42 at 36, 51.) Although Plaintiff asserts her 5 fibromyalgia is not treatable with surgery, her medical records do show positive treatment 6 with medication. (Doc. 9-19 at 107–08.) Plaintiff’s physical exams showed normal 7 strength and gait, and she showed stability on medications despite needing some inpatient 8 treatments. (Docs. 9-31 at 95–97 (normal muscle bulk and tone with 5/5 strength); 9-45 at 9 20–21, 32, 42 (stable mood), 44 (gait within normal limits.) The ALJ also noted Plaintiff’s 10 complaints regarding her ability to find words (Doc. 9-3 at 33), but Plaintiff concedes that 11 her medical records do not address that symptom (see Doc. 10 at 14). The Court rejects 12 Plaintiff’s assertion that the ALJ cherry-picked medical records about whether Plaintiff 13 experienced hallucinations. The exhibits cited by the ALJ show that Plaintiff reported no 14 hallucinations on December 30, 2019, reported experiencing hallucinations on January 2, 15 2020, and reported no hallucinations again on January 7, 2020. (Docs. 9-31 at 81, 85; 9- 16 36 at 108, 113.) The Court thus finds that substantial evidence supports the ALJ’s findings 17 as to Plaintiff’s symptoms. See Biestek, 139 S. Ct. at 1153. 18 B. Evaluation of Medical Testimony 19 Claims, such as Plaintiff’s, that are filed on or after March 27, 2017, are subject to 20 amended regulations for evaluating medical evidence. See Revisions to Rules Regarding 21 Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017) (codified at 20 22 C.F.R. pts. 404 & 416). Plaintiff filed her claim in August 2017. Applying these new 23 regulations, the Ninth Circuit held that an ALJ “must ‘articulate . . . how persuasive’ it 24 finds ‘all of the medical opinions’ from each doctor or other source, and ‘explain how [it] 25 considered the supportability and consistency factors’ in reaching these findings.” See 26 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(b)(2)) 27 (internal citation omitted). 28 Plaintiff argues the medical opinion evidence does not support the RFC. Plaintiff 1 contends the ALJ erred by failing to explain how Dr. Nellis’ opinion was supported by and 2 consistent with the evidence. (Doc. 10 at 12.) Specifically, Plaintiff criticizes Dr. Nellis’ 3 failure to assign a limitation on interactions with supervisors, Dr. Nellis’ description of 4 Plaintiff’s ability to reason, and the “perceived inconsistency” of her auditory 5 hallucinations. (Id. at 12–13.) The Commissioner asserts Plaintiff is conflating Dr. Nellis’ 6 opinion with the ALJ’s responsibility to craft the RFC, and Plaintiff’s medical records 7 reflect the ALJ’s describing the auditory hallucination evidence as inconsistent. (Doc. 13 8 at 16–17.) 9 Here, the ALJ found Dr. Nellis’ opinion not fully persuasive because Dr. Nellis did 10 not include specific vocational terms in her assessment and because Plaintiff’s reports of 11 auditory hallucinations were inconsistent. (Doc. 9-3 at 34.) As noted above, the Court 12 agrees that reports of Plaintiff’s hallucinations were inconsistent. Despite Plaintiff’s 13 reporting “auditory command hallucinations . . . daily” (see Doc. 9-31 at 82), Plaintiff’s 14 medical records showed conflicting reports, supra Sec. III(A). Plaintiff contends Dr. 15 Nellis’ opinion that Plaintiff could remember simple instructions but have difficulty with 16 more complicated instructions is consistent with a finding of reasoning level 1. Plaintiff 17 does not dispute the limitations themselves, but rather the categorization of those 18 limitations. (Doc. 10 at 12.) The Court rejects Plaintiff’s contention because the RFC 19 included that Plaintiff can understand, remember, and carry out simple instructions 20 “consistent with a GED reasoning level of 2 or below.” (Doc. 9-3 at 25) (emphasis added). 21 However, Plaintiff is correct that the ALJ found Dr. Nellis’ recommendation for 22 limited interaction with coworkers and supervisors supported by and consistent with the 23 record—but the ALJ did not include this limitation in the RFC or include such a limitation 24 in hypotheticals posed to the vocational expert. (See Docs. 9-3 at 25, 34; 9-4 at 138.) 25 Plaintiff contends the ALJ’s step-5 analysis amounted to harmful error because Plaintiff’s 26 RFC does not state all relevant limitations. (Doc. 10 at 12.) The Court agrees. The Court 27 “will not reverse the decision of the ALJ for harmless error, which exists when it is clear 28 from the record that the ALJ’s error was inconsequential to the ultimate nondisability 1 determination.” Tommasetti, 533 F.3d at 1038. Here, the Court cannot say that the ALJ’s 2 error was inconsequential because the ALJ’s hypothetical—and the vocational expert’s 3 testimony—did not include limited interaction with supervisors. See Holden v. Comm’r of 4 Soc. Sec. Admin., No. CV-21-01437-PHX-SMB, 2023 WL 2186574, at *5 (D. Ariz. Feb. 5 23, 2023) (“[A]ny hypothetical an ALJ poses to a vocational expert from the RFC ‘must 6 set out all the limitations and restrictions of the particular claimant.’” (quoting Embrey v. 7 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). Agreeing that this omission amounts to 8 harmful error, the Court will remand for further administrative proceedings to ascertain 9 whether limited interactions with supervisors impacts the quantity and quality of jobs 10 available to Plaintiff. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 11 (“Remand for further proceedings is appropriate if enhancement of the record would be 12 useful.”) (Emphasis omitted). 13 C. Step-3 Analysis 14 Plaintiff argues the ALJ committed harmful error by not finding Plaintiff disabled 15 under Listing 12.06—anxiety and obsessive-compulsive disorders. (Doc. 10 at 14); 20 16 C.F.R. Part 404, Subpt. P, App’x 1. Specifically, Plaintiff argues the ALJ did not explain 17 her finding for moderate limitations in the paragraph B criteria or explain any findings 18 under the paragraph C criteria. (Doc. 10 at 14.) The Commissioner argues the ALJ’s 19 findings were supported by substantial evidence. (Doc. 13 at 6.) 20 To be considered disabled for a mental disorder under Listing 12.06, a claimant 21 must satisfy the requirements of both paragraphs A and B or paragraphs A and C. 20 22 C.F.R. Part 404, Subpart P, App’x 1 12.06. Paragraph A requires medical documentation 23 of an anxiety disorder, panic disorder or agoraphobia, or obsessive-compulsive disorder. 24 Id. at 12.06(A). Satisfaction of Paragraph B requires: Extreme limitation of one, or marked limitation of two, of the following areas 25 of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 26 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 27 4. Adapt or manage oneself (see 12.00E4). 28 Id. at 12.06(B). Satisfaction of Paragraph C requires the mental disorder to be “serious and 1 persistent,” meaning the documented history of that disorder for at least two years and 2 evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a 3 highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 4 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your 5 daily life (see 12.00G2c). 6 Id. at 12.06(C). 7 The ALJ found that the “severity of [Plaintiff’s] mental impairments, considered 8 singly and in combination, does not meet or medically equal the criteria of listings 12.06.” 9 (Doc. 9-3 at 24.) The ALJ found Plaintiff did not have a single extreme or marked 10 limitation for any Paragraph B criteria and instead found Plaintiff had moderate limitations 11 for all four areas of mental functioning. (Id. at 24–25.) The Court rejects Plaintiff’s 12 assertion that the ALJ failed to adequately explain the Paragraph B findings. Each of the 13 four criteria were supported by citations to evidence of Plaintiff’s daily living activities and 14 Plaintiff’s interactions with medical providers. (See id.) Each criterion was addressed with 15 a detailed, reasoned analysis to weigh the severity of each limitation. In contrast, Plaintiff 16 asserts only conclusory arguments that the ALJ failed to sufficiently analyze them. The 17 Court finds the ALJ’s findings as to the Paragraph B criteria to be supported by substantial 18 evidence. 19 The ALJ also found that the evidence did not establish the satisfaction of the 20 Paragraph C criteria. (Doc. 9-3 at 25.) The ALJ identified no “medically documented 21 history on file that these [disorders] are serious and persistent in nature. That is, [Plaintiff] 22 did not have a serious and persistent depressive, anxiety or related disorder lasting at least 23 two years,” with the necessary evidence outlined in Paragraph C. (Id.) Plaintiff lodges a 24 similar assertion that the ALJ made only conclusory remarks as to these criteria. (Doc. 10 25 at 14–15.) But Plaintiff points to no evidence—and the Court has found none—to rebut 26 the ALJ’s findings as to Paragraph C. As such, the Court finds the ALJ’s findings to be 27 supported by substantial evidence. 28 2 Therefore, 3 IT IS ORDERED vacating the June 25, 2021 decision of the ALJ, as upheld by the 4|| Appeals Council. 5 IT IS FURTHER ORDERED remanding this case for further proceedings 6 || consistent with this opinion. 7 IT IS FURTHER ORDERED instructing the Clerk to enter judgment consistent 8 || with this order and terminate this case. 9 Dated this 14th day of March, 2023. 10 _ — fe 12 > fonorable Susan M, Brnovich 3 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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