Arroyo v. Comm'r of Soc. Sec.

1

MONICA ARROYO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:22-CV-00360-DMC

United States District Court, E.D. California

June 5, 2023

MEMORANDUM OPINION AND ORDER

DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

Plaintiff who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, ECF Nos. 6 and 7, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c); see also ECF No. 8 (minute order reassigning case to Magistrate Judge). Pending before the Court are the parties' briefs on the merits, ECF Nos 10 and 11.

The Court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

For the reasons discussed below, the matter will be remanded for further proceedings.

I. THE DISABILITY EVALUATION PROCESS

To achieve uniformity of decisions, the Commissioner employs a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed not disabled and the claim is denied;

Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe impairment; if not, the claimant is presumed not disabled and the claim is denied;

Step 3 If the claimant has one or more severe impairments, determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; Step 4 If the claimant's impairment is not listed in the regulations, determination whether the impairment prevents the claimant from performing past work in light of the claimant's residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied;

Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant's residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

To qualify for benefits, the claimant must establish the inability to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment of such severity the claimant is unable to engage in previous work and cannot, considering the claimant's age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The claimant establishes a prima facie case by showing that a physical or mental impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986).

II. THE COMMISSIONER'S FINDINGS

Plaintiff applied for social security benefits on December 18, 2019. See CAR 15.^[1] In the application, Plaintiff claims disability began on November 19, 2019. See id. Plaintiff's claim was initially denied on March 24, 2020. See id. Following denial of reconsideration, Plaintiff requested an administrative hearing, which was held on February 11, 2021, before Administrative Law Judge (ALJ) Sara A. Gillis. See id. In an April 22, 2021, decision, the ALJ concluded Plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): migraines, lumbar degenerative disk disease, depressive disorder, anxiety disorder, and obesity;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: to perform light work as defined in 20 CFR 404.1567(b) except she can never climb ladders, ropes or scaffolds; she can occasionally climb ramps or stairs; she can occasionally stoop and crouch; she can frequently kneel and crawl; she can never work with heights or dangerous machinery; she should avoid concentrated exposure to extreme heat and fumes; she should avoid noisy work environments but can work in moderate noise, such as grocery store or office setting; she can understand, remember, and apply simple job instructions; she can maintain concentration, persistence, and pace for simple, repetitive job tasks, that do not involve teamwork with co-workers; and she can have occasional interactions with her co-workers and the general public;

4. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

See id. at 18-26.

After the Appeals Council declined review on January 10, 2022, this appeal followed. See id. at 1-5.

III. DISCUSSION

In her opening brief, Plaintiff argues: (1) the ALJ failed to properly evaluate Plaintiff's subjective statements and testimony; and (2) the ALJ failed to properly evaluate the medical opinion of Janet O'Brien, M.D. See ECF No. 10, pg. 12. Plaintiff also argues that remand is necessary so the ALJ can consider and evaluate a March 30, 2021, neuropsychological assessment and medical opinion prepared by Virginia Dinut, Psy.D. See id.

As addressed below, the Court remands the matter for further administrative proceedings with respect to Dr. O'Brien's report and opinion, denies Plaintiff's request for remand as to Dr. Dinut's opinion, and declines to make a finding as to whether the ALJ provided clear and convincing reasons for discounting Plaintiff's subjective testimony. Quesada v. Comm'r of Soc. Sec., No. 1:20-CV-01674-SAB, 2022 WL 9452327, at *9 (E.D. Cal. Oct. 14, 2022) (remanding matter for further administrative proceedings and declining to make a determination as to plaintiff's other contentions).

“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical opinion over another. See id.

A. Procedural Standards

Under the regulations, only “licensed physicians and certain qualified specialists” are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. § 404.1502(a). Where the acceptable medical source opinion is based on an examination, the “physician's opinion alone constitutes substantial evidence, because it rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social workers are not considered an acceptable medical source. See Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants also are not acceptable...