United States District Court, D. Nevada
ROBERT J. CRAIG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: MOTION FOR REVERSAL AND
REMAND (ECF NO. 17)
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
Robert J. Craig (“Plaintiff”) seeks judicial
review of the final decision of the Commissioner of Social
Security Administration (“Commissioner” or the
“Agency”) that denied his application for
disability insurance and disability insurance benefits
(“DIB”) under Title II of the Social Security
Act. This Court has jurisdiction under 42 U.S.C. §§
405(g) and 1383(c)(3). For the reasons stated below, the
Commissioner's decision should be affirmed.
February 3, 2014, Plaintiff filed an application for DIB
alleging commencement of his disability on August 15, 2013.
Administrative Record (“AR”) 137-43. The
Commissioner denied Plaintiff's claims on June 25, 2014.
AR 75-79. Reconsideration was then denied on December 11,
2014. AR 85-89. On February 3, 2015, Plaintiff requested a
hearing before an Administrative Law Judge
(“ALJ”). AR 90-91. After conducting a hearing on
March 23, 2016 (AR 29-46), the ALJ issued his opinion on June
13, 2016 (AR 12-28), finding Plaintiff was not disabled. On
August 16, 2016, Plaintiff requested that the Appeals Council
review the decision by the ALJ. AR 133-36. On October 19,
2017, the Appeals Council denied the request for review. AR
1-6. This civil action followed.
STANDARD OF REVIEW
reviewing court shall affirm the Commissioner's decision
if the decision is based on correct legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence is “more than a mere scintilla. 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 citation and
quotations omitted). In reviewing the Commissioner's
alleged errors, the Court must weigh “both the evidence
that supports and detracts from the [Commissioner's]
conclusions.” Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986).
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion.” Batson, 359 F.3d at 1198. A
reviewing court, however, “cannot affirm the decision
of an agency on a ground that the agency did not invoke in
making its decision.” Stout v. Comm'r Soc. Sec.
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation
omitted). Finally, a court may not reverse an ALJ's
decision on account of an error that is harmless. Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation
omitted). “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
Establishing Disability Under The Act
establish that a claimant is disabled under the Act, there
must be substantial evidence that:
(a) the claimant suffers from a medically determinable
physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months; and
(b) the impairment renders the claimant incapable of
performing the work that the claimant previously performed
and incapable of performing any other substantial gainful
employment that exists in the national economy.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (internal citation omitted). “If a claimant meets
both requirements, he or she is disabled.” Id.
employs a sequential five-step evaluation process to
determine whether a claimant is disabled within the meaning
of the Act. Bowen v. Yuckert, 482 U.S. 137, 140
(1987); 20 C.F.R. §§ 404.1520(a), 416.920(b). Each
step is potentially dispositive and “if a claimant is
found to be ‘disabled' or ‘not-disabled'
at any step in the sequence, there is no need to consider
subsequent steps.” Tackett, 180 F.3d at 1098;
20 C.F.R. § 404.1520. The claimant carries the burden of
proof at steps one through four, and the Commissioner carries
the burden of proof at step five. Tackett, 180 F.3d
five steps are:
1. Is the claimant presently working in a substantially
gainful activity [(“SGA”)]? If so, then the
claimant is “not disabled” within the meaning of
the  Act and is not entitled to [DIB]. If the claimant is
not working in a [SGA], then the claimant's case cannot
be resolved at step one and the evaluation proceeds to step
two. See 20 C.F.R. § 404.1520(b).
2. Is the claimant's impairment severe? If not, then the
claimant is “not disabled” and is not entitled to
[DIB]. If the claimant's impairment is severe, then the
claimant's case cannot be resolved at step two and the
evaluation proceeds to step three. See 20 C.F.R.
3. Does the impairment “meet or equal” one of a
list of specific impairments described in the regulations? If
so, the claimant is “disabled” and therefore
entitled to [DIB]. If the claimant's impairment neither
meets nor equals one of the impairments listed in the
regulations, then the claimant's case cannot be resolved
at step three and the evaluation proceeds to step four.
See 20 C.F.R. § 404.1520(d).
4. Is the claimant able to do any work that he or she has
done in the past? If so, then the claimant is “not
disabled” and is not entitled to [DIB]. If the claimant
cannot do any work he or she did in the past, then the
claimant's case cannot be resolved at step four and the
evaluation proceeds to the fifth and final step. See
20 C.F.R. § 404.1520(e).
5. Is the claimant able to do any other work? If not, then
the claimant is “disabled” and therefore entitled
to [DIB]. See 20 C.F.R. § 404.1520(f)(1). If
the claimant is able to do other work, then the Commissioner
must establish that there are a significant number of jobs in
the national economy that claimant can do. There are two ways
for the Commissioner to meet the burden of showing that there
is other work in “significant numbers” in the
national economy that claimant can do: (1) by the testimony
of a vocational expert [(“VE”)], or (2) by
reference to the Medical-Vocational Guidelines at 20 C.F.R.
pt. 404, subpt. P, app. 2. If the Commissioner meets this
burden, the claimant is “not disabled” and
therefore not entitled to [DIB]. See 20 C.F.R.
§§ 404.1520(f), 404.1562. If the Commissioner
cannot meet this burden, then the claimant is
“disabled” and therefore entitled to [DIB].
Id. at 1098-99.
Summary of ALJ's Findings
one, the ALJ determined that Plaintiff did not engage in
substantial gainful activity since August 15, 2013, the date
the application was filed. AR 17. At step two, the ALJ found
Plaintiff suffered from medically determinable severe
impairments consisting of a history of acquired immune
deficiency syndrome (“AIDS”), peripheral edema of
the bilateral extremities with neuropathy, bilateral
hammertoe deformities, and obesity. Id. The ALJ
found at step three that Plaintiff's impairment or
combination of impairments did not meet or equal any
“listed” impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 20.
preparation for step four, the ALJ determined that Plaintiff
had the residual functional capacity (“RFC”) to:
[P]erform sedentary work as defined in 20 C.F.R. §
404.1567(a) except that he is unable to climb ladders, ropes
or scaffolds. He is able to occasionally climb ramps and
stairs, stoop, kneel, crouch and crawl. He is able to
occasionally be around temperature extremes. He is unable to
walk in the dark (i.e., unlighted areas) and can have no
exposure to hazards such as heights and dangerous moving
Id. Thereafter, the ALJ found that Plaintiff
was capable of performing past relevant work as a travel
clerk. AR 23. “This work does not require the
performance of work-related activities precluded by the
claimant's RFC.” Id. The ALJ, therefore,
found “[Plaintiff] has not been under a disability, as
defined in the Social Security Act, from August 15, 2013,
through the date of [the ALJ's] decision.”
Id. The ALJ based his finding on the testimony of
the vocational expert, Plaintiff's work history, and
Plaintiff's income records. Id.
did not consider step five because he found Plaintiff not
disabled at step four in the sequential evaluation process.
See Tackett, 180 F.3d at 1098; 20 C.F.R. §
Summary of Medical Evidence
April 2013, Plaintiff visited Southwest Medical Associates,
Inc., where he reported hallucinogenic side effects from
Lyrica, a medication he was taking for his neuropathy. AR
247. Plaintiff expressed a desire to “discontinue this
medication if at all possible.” Id.
“Prior to . . . Lyrica, the patient also experienced
undesirable side effects with Gabapentin [another neuropathy
medication].” Id. Plaintiff “denie[d]
depression, admit[ted] to being ‘stressed out or
overwhelmed' at times. [Plaintiff] also denie[d]
antidepressants as well as being under the care of a mental
health provider.” Id.
2013, Dr. Paul McHugh assessed Plaintiff with edema in his
bilateral extremities, cellulitis left lower extremities, and
open wounds. AR 236-237. Plaintiff denied being depressed,
suicidal, homicidal, delusional, or hallucinating. AR 236.
Dr. McHugh advised Plaintiff to go to the emergency room and
expressed concerns about deep vein thrombosis and pulmonary
embolus. AR 237. In October 2013, Plaintiff saw Dr. Howard
Ehrenfeld and reported a reduction in the swelling of his
legs. AR 317. Plaintiff appeared with 1 edema in his lower
legs, reduced vibration in the distal half of both feet,
reduced pinprick below the mid-calf, and his gait was
antalgic. Id. At a routine follow up visit with Dr.
McHugh two days later, Plaintiff again denied being
depressed, suicidal, homicidal, delusional, or hallucinating.
2013, Plaintiff returned to Southwest Medical Associates,
Inc., where he reported replacing his Lyrica regimen with
Cymbalta 30mg. AR 252. Plaintiff “admit[ted] to mild
intermittent depression. However, he denie[d] suicidal
ideation ever since the discontinuation of the Lyrica.
[Plaintiff] will also consider undergoing the treatment with
a mental health provider.” Id.
April 2014, Plaintiff saw Dr. McHugh with swelling in his
lower extremities. AR 338. He appeared with 2 edema
bilaterally. Id. Dr. McHugh noted that there was one
area of Plaintiff's skin that “seemed to be oozing
a little bit.” Id. Later that month,
psychologist Richard Yao, Ph.D., conducted a psychological
consultative examination of Plaintiff. AR 291-296. Plaintiff
recalled five out of six words on a short-term memory test.
AR 293. Plaintiff recalled four out of six words on a
long-term memory test, and one more word with additional
prompting. AR 293-294. Plaintiff completed serial seven's
to 86 and completed serial three's without any
difficulty. AR 294. Dr. Yao concluded that Plaintiff could
“understand, remember, and carry out a variety of
complex, detailed, and simple instructions on a sustained
basis, ” and could interact appropriately with
supervisors, coworkers, and the general public. AR 295. Dr.
Yao diagnosed Plaintiff with unspecified depressive disorder.
2014, Plaintiff did “not admit to being depressed or
anxious” to Dr. McHugh. AR 358. Two months later, Dr.
McHugh noted Plaintiff's edema had “improved
considerably” since they last saw one another. AR 354.
In August 2014, Plaintiff's podiatrist Dr. Jeremy Tilton
observed lesions under Plaintiff's toes and nails. AR
381. Plaintiff reported feeling loss of protective sensation
bilaterally. Id. In September 2014, Dr. Sunil Kalla
reported Plaintiff's edema had “resolved since he
quit his job [as a flight attendant] and he elevated his
legs.” AR 346. Plaintiff showcased “minimal
symptoms of burning/cramping, ” and “his swelling
is controlled as long as he doesn't stand too
long.” Id. An ultrasound of Plaintiff's
lower extremities was positive for bilateral great saphenous
vein (“GSV”) reflux, but negative for deep vein
thrombosis. AR 349. Three days after his ultrasound,
Plaintiff was seen by Dr. McHugh with visual issues,
potential balancing issues, and memory loss. AR 383.
Plaintiff appeared with edema 1. Id. Dr. McHugh
noted that Plaintiff's “venous insufficiency or
incompetent valves . . . tends to resolve after he elevates
his legs at night. Much less swelling during the day.”
in September 2014, Plaintiff's neurologist, Dr. Omar B.
Cabahug, observed symmetric decrease in touch and pinprick in
a stocking more than glove distribution, evidence of right
carpal tunnel syndrome, and probable bilateral cubital tunnel
syndrome. AR 395, 396. Plaintiff reported that he suffered
from “some cognitive or memory loss” after given
Gabapentin for his neuropathy “about a year and a half
ago.” AR 395. “[D]espite being off the
medication, [Plaintiff] continues to have this cognitive
impairment.” Id. Plaintiff also reported side
effects from Lyrica, the neuropathy medication he began
taking after ceasing use of Gabapentin. Id.
Additionally, Plaintiff “is taking Cymbalta 30mg [for
his neuropathy] . . . which according to him is not
enough.” Id. Dr. Cabahug found Plaintiff's
score of 25/30 on the Montreal Cognitive Assessment
(“MOCA”) test significant because Plaintiff had
finished some college. Id. “With regards to
the cognitive impairment, [Dr. Cabahug was] concerned about
potential CNS involvement with [Plaintiff's] AIDS and/or
[adverse effects] to medication.” AR 396. Plaintiff
“denie[d] any active signs of depression” and
“any suicidal or homicidal ideation.” AR 395.
October 2014, Dr. Tilton noted that Plaintiff felt increased
pain to his left second toe because of a persistent callus,
and continued to have loss of protective sensation
bilaterally. AR 404. In June 2015, Plaintiff told Dr. Cabahug
that his neuropathy pain has been controlled since increasing
his Cymbalta dosage to 60mg. AR 409. Dr. Cabahug opined that
Plaintiff's “cognitive impairment is stable.”
Id. Plaintiff again scored 25/30 on the MOCA
testing. Id. Dr. Cabahug assessed Plaintiff with
“mild cognitive impairment probably related to his AIDS
and/or anti-viral treatment, ” “mild to moderate
white matter disease on the recent [November 21, 2014] MRI of
the brain, ” “mild bilateral carpal tunnel
syndrome and moderate to severe peripheral neuropathy of the
lower extremities more than the upper extremities, ”
and “elevated homocysteine level.” Id.
Plaintiff denied depression, mood problems, and suicidal or
homicidal ideation. Id.
Plaintiff's Symptom Testimony
was born on January 5, 1960, and was fifty-six years old at
the time of his hearing. AR 35. Plaintiff stopped working
because he could no longer stand up. AR 34. Since Plaintiff
has stopped working, he spends most of his time on the couch
with his legs elevated so that they remain smaller.
Id. Plaintiff uses the computer for brief intervals,
watches television, and does “little, small
chores” around the house when he is able to.
Id. Plaintiff reports side effects from his
neuropathy medication. Id. Plaintiff does not drink
alcohol, nor does he use any illegal street drugs. AR 35.
Plaintiff cannot drive for long distances or to unknown
places, because he forgets how to get home and begins
experiencing “shooting pains” in his leg. AR 36.
Plaintiff has “occasional” difficulty reading and
writing. Id. At his concierge job, Plaintiff was on
his feet the majority of an eight-hour shift and lifted
anywhere between twenty-five to thirty-five pounds at a time.
Id. Plaintiff's doctors advised that surgery may
be appropriate for his collapsed veins, but said “if
[Plaintiff] can remain with [his] legs elevated and keep the
buildup from making [his] legs three times their normal size,
then that would be okay.” AR 37. Plaintiff has problems
using his wrists and hands, and his toes have curled in and
atrophied. Id. Plaintiff can sit comfortably for
approximately thirty minutes before he has to change position
or stand. Id. If Plaintiff does not put his feet up
after that time, he experiences electrical shocks through his
toes, which creep up through the top of his foot. AR 37-38.
Plaintiff can stand on his feet for about ten minutes at a
time before he has to sit down. AR 38. Plaintiff experiences
difficulty going up the stairs, and it is nearly impossible
for him to go down stairs. Id. Plaintiff has no
problem reaching above his head to grab a plate or a can off
the kitchen shelf, although he later remarked that he is
unable to do so if he closes his eyes. AR 38-39. Plaintiff
cannot get in a praying position on both knees, nor can he
squat like a catcher on a baseball team and get up again
without any help. AR 38. Plaintiff uses ramps and wheelchairs
for long distances. Id. Plaintiff does not engage in
regular social activities outside his house. Id.
Plaintiff has problems taking a bath or showering, because
his neuropathy causes him to fall down if he leans his head
backwards or close his eyes. AR 39. Plaintiff uses handhelds,
his chair, and his partner for balance when he showers.
Id. Plaintiff has problems getting dressed; in
particular, he experiences difficulty putting his shoes and
socks on if his legs swell and/or lock. AR 40. Plaintiff can
use zippers, but he has been experiencing more and more
difficulty using buttons because he does not “have the
strength in [his] fingers.” Id. Plaintiff
confirmed he was taking all the medication listed on AR 220,
as well as Lortab. Id. Plaintiff's shoe size
grew from thirteen to fifteen because of the swelling, and he
constantly trips over his feet. AR 40-41. Plaintiff's
memory used to be “incredible” until he began
taking his neuropathy medication Gabapentin, which caused him
to suffer from memory loss. AR 41. Plaintiff's memory
loss prevents him from forming sentences, causes him to
“really think before [he] speak[s], ” and makes
him unable to understand what “certain things