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Daniel v. Berryhill

United States District Court, D. Nevada

May 25, 2017

LENA J. DANIEL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          REPORT OF FINDINGS AND RECOMMENDATION (MOT. TO REMAND - ECF NO. 17) (CROSS-MOT. TO AFFIRM - ECF NO. 18)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Plaintiff 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.[2] 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.

         An 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 224.

         The 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.

         A brief 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 representation. Id.

         The ALJ 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.

         A 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.

         On 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).

         DISCUSSION

         I. Applicable Law

         A. Judicial Review of Disability Determination

         Federal 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.

         The 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)).

         Under 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 substantial evidence.

         It is 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 rejected).

         B. Disability Evaluation Process

         A 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).

         II. The ALJ's Decision

         An ALJ 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).

         Here, 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.

         A. Step One

         The 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.

         At 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.

         B. Step Two

         The 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).[3] 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 step.

         At step 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.

         C. Step Three

         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.

         When 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).

         If the 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), 12.05(C), 12.06(C).

         At step 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”).

         D. ...


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