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Craig v. Berryhill

United States District Court, D. Nevada

September 16, 2019

ROBERT J. CRAIG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE: MOTION FOR REVERSAL AND REMAND (ECF NO. 17)

          ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         On 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.

         II. STANDARD OF REVIEW

         A 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).

         “When 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).

         III. DISCUSSION

         A. Establishing Disability Under The Act

         To 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.

         An ALJ 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 at 1098.

         The 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. § 404.1520(c).
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]. See id.

Id. at 1098-99.

         B. Summary of ALJ's Findings

         At step 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.

         In 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 machinery.

Id.[1] 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.

         The ALJ 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. § 404.1520.

         C. Summary of Medical Evidence

         In 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.

         In May 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. AR 238.

         In July 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.

         In 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. Id.

         In May 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.” Id.

         Later 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.

         In 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.

         D. Plaintiff's Symptom Testimony

         Plaintiff 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.[2] 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 are.” Id.

         E. Vocational ...


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