Gracia v. Commissioner of Social Security Administration

Lupe Gracia, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

No. CV-20-01132-PHX-JAT

United States District Court, D. Arizona

July 19, 2021

ORDER

James A. Teilborg Senior United States District Judge

Pending before the Court is Plaintiff Lupe Gracia's appeal from the denial of Social Security disability benefits under 42 U.S.C. § 405(g). The appeal is fully briefed (Docs. 16 17, 18), and the Court now rules.

1. BACKGROUND

A. Factual Overview

Plaintiff filed an Application for Disability Insurance Benefits and Supplemental Security Income on March 14, 2014, alleging disability beginning on August 12, 2013. (AR 204). Plaintiff's claim was denied initially on April 17, 2015 and upon reconsideration on July 16, 2015. (AR 204). Plaintiff appealed to an Administrative Law Judge (“ALJ”), who issued an unfavorable decision on June 7, 2017. (AR 220). On May 2, 2018, after review, the Appeals Council (“AC”) remanded Plaintiff's case to the ALJ for further development of the record. (AR 235). Following remand, a second ALJ again found Plaintiff not disabled for the purposes of social security benefits on May 14, 2019. (AR 30).

B. The SSA's Five-Step Evaluation Process

A person is considered “disabled” for the purpose of receiving social security benefits if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and each step is potentially dispositive. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial gainful activity is work activity that involves “significant physical or mental activities, ” and done “for pay or profit.” Id. § 404.1572(a)-(b). At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically determinable physical or mental impairment, ” then the claimant is not disabled. Id. A “severe impairment” is one which “significantly limits [the claimant's] physical or mental ability to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and aptitudes necessary to do most jobs.” Id. § 404.1522(b).

At step three, the ALJ considers whether the claimant's impairment, or combination of impairments, meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the ALJ will find the claimant disabled. Id. If not, before proceeding to step four, the ALJ must assess the claimant's residual functional capacity (RFC). Id. § 404.1520(a)(4). The RFC represents the most a claimant “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the claimant's RFC, the ALJ will consider the “impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental limitations that affect what [the claimant] can do in a work setting.” Id.

At step four, the ALJ uses the claimant's RFC to determine whether she is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ compares the claimant's RFC with the physical and mental demands of her past relevant work. Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find that she is not disabled. Id. § 404.1520(a)(4)(iv).

If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other work, then the claimant is not disabled. Id. If not, the claimant is disabled. Id.

C. The ALJ's Findings

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset of the disability on August 12, 2013. (AR 19).

At step two, the ALJ determined that Plaintiff had the following severe impairments: migraine headaches, lumbar region radiculopathy, degenerative disc disease, cervical spondylosis, and chronic pain syndrome. (AR 19).

At step three, the ALJ determined that Plaintiff's combination of impairments did not meet or medically equal the severity of an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. (AR 23). The ALJ also determined that some of Plaintiff's impairments were non-severe. (AR 20). These impairments included obesity, reflux esophagitis, gastroesophageal reflux disease, a right shoulder impairment, asthma, hypertension, fibromyalgia, a wrist impairment, a depressive disorder, and post-traumatic stress disorder (“PTSD”). (AR 20). In ruling Plaintiff's mental impairments non-severe, the ALJ considered the four areas of mental functioning set out in the Listing of Impairments from 20 C.F.R., Part 404 known as “paragraph B” criteria. (AR 22). The ALJ used the paragraph B criteria to determine that the alleged mental impairments imposed no more than a “mild” limitation on Plaintiff, and thus were not severe. (AR 22). As a result, the ALJ did not include discussion of Plaintiff's mental impairments in her calculation of the RFC which stated:

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant should avoid climbing. The claimant can occasionally kneel, crouch, crawl and stoop. The claimant can frequently engage in handling, fingering and feeling with the right hand. The claimant should avoid exposure to dangerous machinery and unprotected heights.

(AR 24). The ALJ did note, however, that the “residual functional capacity assessment reflects the degree of limitation the [ALJ] has found in the ‘paragraph B' mental function analysis.” (AR 22).

At step four, the ALJ determined that Plaintiff could perform past relevant work as a Customer Service Representative and a Loan Officer following testimony from a vocational expert. (AR 30).

Accordingly, the ALJ ruled that Plaintiff was not disabled from the alleged onset date to March 31, 2019. (AR 30).

II. LEGAL STANDARD

The Social Security Administration's (“SSA”) decision to deny benefits “should be upheld unless it is based on legal error or is not supported by substantial evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted); Richardson v. Perales, 402 U.S. 389, 401 (1971) (defining substantial evidence as something that a reasonable mind might accept as adequate to support a conclusion). The Court must review the record as a whole and consider both the evidence that supports and detracts from the ALJ's determination. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court will not reverse for an error is that is “inconsequential to the ultimate nondisability determination” or where the ALJ's “path may reasonably be discerned, even if the [ALJ] explains [her] decision with less than ideal clarity.” Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). If the evidence supports more than one rational interpretation, the Court must uphold the Commissioner's decision. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).

III. DISCUSSION

Plaintiff argues that the ALJ erred by failing to comply with the AC's remand order, misapplying the de minimis standard to Plaintiff's impairments, and failing to include certain limitations in the RFC finding. (Doc. 16 at 23). Plaintiff seeks a remand for benefits, or in the alternative, a remand for further proceedings. (Doc. 18 at 15).

A. The ALJ's Compliance with the AC's Remand Order

1. Legal Standard

Under 20 C.F.R. § 404.977(b), the ALJ must take every action ordered by the AC upon remand. An ALJ who takes action that is inconsistent with the AC's remand order commits legal error. Pavlich v. Colvin, No. CV 13-01829-MAN, 2014 WL 4449897 at *5 (C.D. Cal. 2014). The ALJ must also discuss the evidence that supports her conclusion that the alleged impairments do not meet or equal a listed impairment. Lewis, 236 F.3d at 512. This discussion is not required to be in the listed impairments analysis and may take place in other portions of the decision. See Lewis, 236 F.3d at 513 (holding that the ALJ did not err by discussing relevant evidence in the “Statement of the Case” section, rather than in the “Findings” section of the opinion); Connors v. Colvin, 656 Fed.Appx. 808, 810 (9th Cir. 2016). A plaintiff is not considered to have a listed impairment solely because she possess a diagnosis of the impairment; she must also demonstrate all the characteristics of that listing. See Marcia v. Sullivan, 900 F.2d 172, 175 (9th Cir. 1990) (holding that a plaintiff's diagnosis of liver disease did not possess the required findings associated with the listing because the medical record...