Aguilera v. Kijakazi

1

ROSA EDEZA AGUILERA, Plaintiff, v. KILOLO KIJAKAZI, acting Commissioner of Social Security, Defendant.

No. 1:21-cv-00384-GSA

United States District Court, E.D. California

March 7, 2023

ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF DEFENDANT COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF (DOC. 23)

GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

I. Introduction

Plaintiff Rosa Edeza Aguilera (“Plaintiff”), proceeding pro se, seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) granting in part and denying in part her application in for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is before the Court on the parties' briefs which were submitted without oral argument to the United States Magistrate Judge.^[1] Docs. 23, 25. After reviewing the record the Court finds that substantial evidence and applicable law support the ALJ's decision.

II. Factual and Procedural Background^[2]

On January 22, 2019, Plaintiff applied for supplemental security income alleging a disability onset date of February 24, 2018, due to removal of both breasts with subsequent reconstructive surgeries with resulting pain, tingling and numbness in her right upper extremity. Ex. 5E and 8E; AR. The Commissioner denied the application initially on May 22, 2019, and on reconsideration on August 16, 2019. Plaintiff filed a request for a hearing on September 30, 2019.

On November 13, 2019 however, Plaintiff signed and filed a document entitled “waiver of your right to personal appearance before an administrative law judge” indicating she could not attend the hearing due to pain and an upcoming surgery. AR 86. It is not clear if she was advised of the option to appear by telephone or video conference (or if such an option was even available as this was just prior to the pandemic).

Nevertheless, she did not request a continuance or other accommodation, and the title of the form she signed as quoted above is self-explanatory in that it indicates an intention to waive her right to appear. As such, the ALJ found she had waived the right to a hearing and no hearing was held. Plaintiff has not suggested in her filings that she was disadvantaged by the lack of a hearing.^[3]

On August 7, 2020 the ALJ issued a partially favorable decision finding: 1) Plaintiff became disabled as of August 4, 2020 (due to an upcoming change in age category from 54 to 55 shortly following the decision date which, combined with Plaintiff's RFC and vocational background, resulted in a finding of disability pursuant to medical-vocational rule (aka “grid” rule) 202.01; and 2) that Plaintiff did not become disabled as of February 24, 2018 as alleged.^[4] AR 11-22. The Appeals Council denied review on January 5, 2021. AR 1-5. On July 12, 2021, Plaintiff filed a complaint in this Court. Doc. 1.

III. The Disability Standard

Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).

When performing this analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the evidence could reasonably support two conclusions, the court “may not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §1382c(a)(3)(B).

To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically determinable “severe impairments,” (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant work, and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears the burden of proof at steps one through four, the burden shifts to the commissioner at step five to prove that Plaintiff can perform other work in the national economy given her RFC, age, education and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).

IV. The ALJ's Decision

At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of January 22, 2019. AR 13. At step two the ALJ found that Plaintiff had the following severe impairments: genetic carrier of breast cancer gene on chromosome 13 (BRCA2) status post prophylactic mastectomy and reconstruction. AR 13. The ALJ also determined at step two that Plaintiff had the following non-severe impairments: uterine fibroids, leiomyoma, status post supracervical abdominal hysterectomy and bilateral salpingo-oophorectomy; high cholesterol; right wrist pain and mild ulnar minor variance. AR 13. The ALJ determined that Plaintiff's alleged back pain was not attributable to any medically determinable impairment. AR 14. At step three the ALJ found that Plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 65-67.

Prior to step four the ALJ evaluated Plaintiff's residual functional capacity (RFC) and concluded that Plaintiff had the RFC to perform a reduced range of light work as defined in 20 C.F.R. 416.967(b) with the following restrictions: occasionally push/pull and lift/carry 20 pounds and frequently do so with 10 pounds; sit for one hour at a time and six hours total; stand and walk for one hour at a time and six hours total; frequently stoop, kneel, crouch, and crawl; frequently climb ramps, stairs, ladders, ropes, and scaffolds; occasional reach overhead with the right upper extremity; frequently operate foot controls. AR 15-19.

Because there was no hearing the ALJ obtained the Vocational Expert's responses via a “Vocational Interrogatory” questionnaire (Ex. 10E, AR 170-78). In reliance on the vocational interrogatory responses the ALJ concluded at step four that Plaintiff could not perform her past relevant work as a housekeeper cleaner as actually or generally performed. AR 19. At step five the ALJ concluded that, prior to Plaintiff's change in age category on August 4, 2020, Plaintiff could perform other jobs existing in significant numbers in the national economy, namely: office helper, information clerk, and photocopy attendant. AR 20. Accordingly, the ALJ concluded that Plaintiff was not disabled prior to August 4, 2020, but did become disabled on that date. AR 21.

V. Issues Presented

The most relevant argument Plaintiff provided in response to the ALJ's decision letter was a one page letter attached to her complaint. The Court will consider the allegations made in that letter as well as her current letter docketed as a motion for summary judgment.

Fundamentally, Plaintiff maintains she became disabled following her February 27, 2018 mastectomy. The ALJ disagreed, finding Plaintiff had the residual capacity to perform light work through the date her age category changed on August 4, 2020,^[5] but did become disabled on that date.

A. Applicable Law

Before proceeding to step four, the ALJ must first determine the claimant's residual functional capacity. Nowden v Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971,...