United States District Court, D. Nevada
LENA J. DANIEL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
REPORT OF FINDINGS AND RECOMMENDATION (MOT. TO REMAND
- ECF NO. 17) (CROSS-MOT. TO AFFIRM - ECF NO. 18)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
matter involves Plaintiff Lena J. Daniel's appeal and
request for judicial review of the Acting Commissioner of
Social Security, Defendant Nancy A. Berryhill's final
decision denying her claim for disability insurance benefits
under Title II of the Social Security Act (the
“Act”), 42 U.S.C. §§ 401-33, and claim
for supplemental security income under Title XVI of the Act,
42 U.S.C. §§ 1381-83.
Lena J. Daniel (“Daniel”) filed a Title II
application for disability benefits on May 21, 2009, at the
age of 45, and also protectively filed a Title XVI
application for supplemental security income on June 2, 2009.
AR 381-83, 386-91. These applications initially alleged a
disability onset date of December 22, 2004. In her
applications, Daniel claimed she was unable to work because
of: (1) mood disorder; (2) bipolar disorder; and (3)
depression. AR 406. Her work history reports indicate she
previously worked in clerical and administrative roles as an
office assistant and customer service representative. AR
412-19. The Social Security Administration (the
“Agency”) denied Daniel's application
initially and on reconsideration. AR 147-50.
administrative law judge (“ALJ”) held a hearing
on March 3, 2011, where Ms. Daniel appeared with counsel. AR
123-46. During the hearing, counsel amended Daniel's
alleged onset date to November 30, 2009, as the record
contained no medical evidence prior to 2007. AR 125- 26. This
amendment of the alleged onset date effectively precluded her
Title II application because her date last insured was
September 30, 2009. Id.; see also AR 154.
Daniel's counsel asserted that the theory of her case
stemmed from her mental problems, not physical problems. AR
125- 26. The ALJ left the record open for 30 days to allow
Ms. Daniel to supplement with additional medical records and
he also ordered a psychological examination with testing. AR
127, 145. The ALJ issued a decision on June 3, 2011 (the
“2011 decision”), finding that Daniel was not
disabled and she was capable of performing her past relevant
work as an office assistant. AR 154-62. Ms. Daniel requested
review of the ALJ's decision by the Appeals Council. AR
Appeals Council issued an order vacating the 2011 decision
and remanding the case to the ALJ for further consideration.
AR 225-29. The Order stated that further consideration was
needed on whether Ms. Daniel could work as an office
assistant because her residual functional capacity limited
her to brief encounters with the public and coworkers but the
mental demands of an office assistant require more than brief
encounters. AR 227. Additionally, the Appeals Council found
that the mental limitations included in her RFC would
significantly compromise the potential occupational base for
medium unskilled work. Id. However, the ALJ's
decision lacked supporting evidence from a vocational expert.
Id. Lastly, the Order noted that the 2011 decision
did not evaluate Ms. Daniel's obesity as required by
Agency regulations. Id. The Appeals counsel
instructed the ALJ to address these three deficiencies on
remand. AR 228.
second hearing was held on February 2, 2012. AR 90-101.
Because Ms. Daniel appeared at the hearing without counsel,
the ALJ continued the matter to allow her to secure new legal
held a third hearing on July 12, 2012. AR 102-22. Ms. Daniel
appeared at this hearing with new counsel who amended her
alleged onset date to September 29, 2009. AR 106. This second
amendment reinstated her Title II application. Id.
The ALJ suspended the third hearing to further develop the
record. AR 119. The ALJ asked Daniel's counsel for
medical records regarding Ms. Daniel's newly alleged
physical impairments and ordered a second psychological exam,
an orthopedic exam, and a vision exam. AR 113-14, 119-21.
fourth hearing was held on February 26, 2013. The ALJ
accepted testimony from Daniel, AR 70-72, 81-88, and a
vocational expert, AR 73-81. The ALJ held the record open for
30 days to allow Ms. Daniel to submit all of her mental
health records. AR 72, 88-89. In a decision dated April 12,
2013, the ALJ found that she was not disabled. AR 17-42. Ms.
Daniel again requested review of the ALJ's decision by
the Appeals Council, but the ALJ's decision became final
when review was denied on August 19, 2014. AR 1-6.
October 17, 2014, she filed a Complaint (ECF No. 1) in
federal court, seeking judicial review of the
Commissioner's decision pursuant to 42 U.S.C. §
405(g). The Commissioner filed her Answer (ECF No. 10) on
March 9, 2015. Ms. Daniel filed a Motion to Remand (ECF No.
17), and the Commissioner filed a Cross-Motion for Summary
Judgment and Response (ECF Nos. 18, 19). The court has
considered the Motion, Cross-Motion and Response, and Reply
(ECF No. 20).
Judicial Review of Disability Determination
district courts review administrative decisions in social
security benefits cases under 42 U.S.C. § 405(g).
Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002). The statute provides that after the Commissioner has
held a hearing and rendered a final decision, a disability
claimant may seek review of that decision by filing a civil
lawsuit in a federal district court in the judicial district
where the disability claimant lives. 42 U.S.C. § 405(g).
The statute also provides that the district court may enter,
“upon the pleadings and transcripts of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” Id.
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g);
Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005).
But the Commissioner's findings may be set aside if they
are based on legal error or not supported by substantial
evidence. Stout v. Comm'r Soc. Sec. Admin., 454
F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart,
278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines
substantial evidence as “more than a mere scintilla but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995); see also Bayliss v. Barnhart,
427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining
whether the Commissioner's findings are supported by
substantial evidence, a court “must consider the entire
record as a whole and may not affirm simply by isolating a
‘specific quantum of supporting evidence'.”
Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159
(9th Cir. 2012)).
the substantial evidence test, a court must uphold the
Commissioner's findings if they are supported by
inferences reasonably drawn from the record. Batson v.
Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2003). When the evidence will support more than one
rational interpretation, a court must defer to the
Commissioner's interpretation. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Consequently, the issue before a court is not whether the
Commissioner could reasonably have reached a different
conclusion, but whether the final decision is supported by
incumbent upon an ALJ to make specific findings so that a
court does not speculate as to the basis of the findings when
determining if the Commissioner's decision is supported
by substantial evidence. See Burrell v. Colvin, 775
F.3d 1133, 1140 (9th Cir. 2014). Mere cursory findings of
fact without explicit statements about what portions of the
evidence were accepted or rejected are not sufficient.
Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.
1981). An ALJ's findings should be comprehensive,
analytical, and include a statement explaining the
“factual foundations on which the ultimate factual
conclusions are based.” Id. See also Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (an ALJ
need not discuss all the evidence in the record, but must
explain why significant probative evidence has been
Disability Evaluation Process
claimant has the initial burden of proving disability.
Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.
1995). To meet this burden, a claimant must demonstrate an
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). A claimant must provide specific
medical evidence to support his or her claim of disability.
Reddick v. Chater, 157 F.3d 715, 721 (9th Cir.
1998). If a claimant establishes an inability to perform his
or her prior work, the burden shifts to the Commissioner to
show that the claimant can perform other substantial gainful
work that exists in the national economy. See Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (noting that
a claimant bears the burden of proof until the final step in
the evaluation process).
The ALJ's Decision
follows a five-step sequential evaluation process in
determining whether a claimant is disabled. 20 C.F.R. §
416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
If at any step an ALJ makes a finding of disability or
non-disability, no further evaluation is required. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Barnhart v.
Thomas, 540 U.S. 20, 24 (2003).
the ALJ followed the five-step sequential evaluation process
and issued an unfavorable decision on April 12, 2013 (the
“Decision”). AR 20-34. Ms. Daniel does not
challenge the ALJ's findings at any particular step, but
asserts that the ALJ failed to articulate reasons supported
by substantial evidence for rejecting the opinion of a
psychological examining physician. The parties stipulate that
the ALJ fairly and accurately summarized the evidence and
testimony of record in the Decision, except as specifically
addressed in their arguments.
first step of the disability evaluation requires an ALJ to
determine whether the claimant is currently engaging in
substantial gainful activity. 20 C.F.R. §§
404.1520(b), 416.920(b). Substantial gainful activity is
defined as work activity that is both substantial and
gainful; it involves doing significant physical or mental
activities, usually for pay or profit. 20 C.F.R. §§
404.1572(a)-(b), 416.972(a)-(b). If the claimant is currently
engaging in substantial gainful activity, then a finding of
not disabled is made. If the claimant is not engaging in
substantial gainful activity, then the analysis proceeds to
the second step.
one in the Decision, the ALJ found that Ms. Daniel had not
engaged in substantial gainful activity since September 29,
2009, the amended alleged onset date. AR 22. Given her lack
of substantial gainful activity, the ALJ's analysis
proceeded to the second step.
second step of the disability evaluation addresses whether a
claimant has a medically-determinable impairment that is
severe or a combination of impairments that significantly
limits him or her from performing basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). An impairment or
combination of impairments is not severe when medical and
other evidence establish only a slight abnormality or a
combination of slight abnormalities that would have no more
than a minimal effect on the claimant's ability to work.
20 C.F.R. §§ 404.1521, 416.921; Social Security
Ruling (“SSRs”) 85-28, 1985 WL 56856 (Jan. 1,
1985), SSR 96-3p, 61 Fed. Reg. 34468 (July 2, 1996); SSR
96-4p, 61 Fed. Reg. 34488 (July 2, 1996). If a claimant
does not have a severe medically-determinable impairment or
combination of impairments, then an ALJ will make a finding
that a claimant is not disabled. If a claimant has a severe
medically-determinable impairment or combination of
impairments, then an ALJ's analysis proceeds to the third
two in the Decision, the ALJ found that Ms. Daniel had the
following severe impairments: (i) panic disorder (with
agoraphobia features), (ii) bipolar disorder not otherwise
specified (with psychotic features), and (iii) chronic right
knee pain from osteoarthritic changes and a tear of the
medial meniscus, and (iv) obesity. AR 22. In making his
findings at step two, the ALJ specifically considered all of
her medically determinable impairments, including the
non-severe impairment of right ankle pain status post right
ankle surgery with evidence of old trauma to the lateral
malleolus. AR 23. Because it did not more than minimally
limit her ability to perform basic work activities, the ALJ
determined that the right ankle pain was a non-severe
impairment. AR 23. The ALJ considered the combined effect of
all of her impairments on her ability to function, including
her obesity, to evaluate her RFC. Id. Because Ms.
Daniel had four severe medically-determinable impairments,
the ALJ's analysis proceeded to the third step.
three of the disability evaluation requires an ALJ to
determine whether a claimant's impairments or combination
of impairments meet or medically equal the criteria of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1, which is commonly referred to as the
“Listings.” 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.826. If a
claimant's impairment or combination of impairments meet
or equal the criteria of the Listings and meet the duration
requirement, 20 C.F.R. §§ 404.1509, 416.909, then
an ALJ makes a finding of disability. 20 C.F.R. §§
404.1520(h), 416.920(h). If a claimant's impairment or
combination of impairments does not meet or equal the
criteria of the Listings or meet the duration requirement,
then the analysis proceeds to the next step.
the Agency evaluates the severity of mental impairments, 20
C.F.R. § 404.1520a requires the use of a “special
technique” to evaluate four broad functional areas
known as the “Paragraph B Criteria” in Listing
12.00C of the Listing of Impairments set forth at 20 C.F.R.,
Part 404, Subpart P, Appendix 1. Id.; see
also 20 C.F.R. § 1520a (explaining the psychiatric
review technique); SSR 96-8p, 61 Fed. Reg. 34474 (July 2,
1996) (noting that application of the technique is documented
on a Psychiatric Review Technique Form). Paragraph B criteria
require a claimant to show that he or she experienced marked
limitations in mental function. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00. To satisfy Paragraph B criteria, mental
impairments must result in at least two of the following: (i)
marked restriction in activities of daily living; (ii) marked
difficulties in maintaining social functioning; (iii) marked
difficulties in maintaining concentration, persistence, or
pace; or (iv) repeated episodes of decompensation, each of
extended duration. See, e.g., id. §
12.04(B). A “marked” limitation means “more
than moderate but less than extreme.” Id.
§ 12.00(C). Repeated episodes of decompensation with
extended duration means three episodes within one year, or an
average of once every four months, each lasting for at least
two weeks. Id. § 12.00(C)(4).
Paragraph B criteria are not met, a claimant may nevertheless
be found disabled under alternative Paragraph C criteria.
Id. § 12.00(A). Under the regulations,
Paragraph C criteria are considered only if the Paragraph B
criteria are not satisfied. Id. Paragraph C criteria
require a medically documented history of a chronic affective
disorder of at least two years duration that has caused more
than a minimal limitation of ability to do basic work
activities with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
(1) repeated episodes of decompensation each of extended
duration; or (2) a residual disease process that has resulted
in such marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or (3)
current history of one or more years' inability to
function outside a highly supportive living arrangement, with
an indication of continued need for such arrangement.
See §§ 12.02(C), 12.03(C), 12.04(C),
three, the ALJ determined that the evidence did not support a
finding that Ms. Daniel had the severity of symptoms
required, either singly or in combination, to meet or equal
Listings 1.02 (major dysfunction of a joint), 12.03
(schizophrenic, paranoid and other psychotic disorders), or
12.04 (affective disorders). AR 23. With regard to Listings
12.03 and 12.04, the ALJ specifically evaluated the Paragraph
B Criteria and concluded that the greater weight of the
evidence showed Daniel suffered: (i) no restrictions in
activities of daily living; (ii) mild to moderate
difficulties in social functioning; (iii) moderate
limitations in concentration, persistence, or pace; and (iv)
no episodes of decompensation that have been of extended
duration. AR 24; see also AR 524-37 (Psychiatric
Review Technique Form). The ALJ also considered Paragraph C
criteria for Listings 12.03 and 12.04; however, the record
lacked evidence of Paragraph C criteria. AR 24. The ALJ
therefore concluded that she did not have an impairment or
combination of impairments that meet or medically equal one
of the impairments described in the Listings. Id. As
such, the ALJ's analysis continued to her residual
functional capacity (“RFC”).