Nudelman v. Comm'r of Soc. Sec. Admin.

1

Glenn Lane Nudelman, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

No. CV-20-08301-PCT-MTL

United States District Court, D. Arizona

January 11, 2022

ORDER

Michael T. Liburdi United Slates District Judge

Plaintiff Glenn Lane Nudelman challenges the Social Security Administration's (“SSA”) determination that he does not qualify for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act because he is not disabled. Nudelman filed a Complaint with this Court seeking judicial review of that determination. (Doc. 1.) The Court has reviewed the briefs (Docs. 18, 23 29) and the Administrative Record (Doc. 17, “AR”) and now affirms the administrative law judge's (“ALJ”) decision (AR at 13-34).

I. BACKGROUND

On April 6, 2017, Nudelman filed his application for DIB, alleging that he had been disabled since May 31, 2016. (AR at 16, 208.) The Commissioner denied Nudelman's application initially and on reconsideration. (Id. at 121-24, 126-29.) Nudelman appeared at a hearing on October 31, 2019 before an ALJ. (Id. at 35-93.) On February 5, 2020, the ALJ issued a written decision finding Nudelman not disabled. (Id. at 13-34.) Nudelman requested review of his claim and on September 14, 2020, the Appeals Council denied review making the ALJ's decision final and ripe for this Court's review. (Id. at 1-6.)

Nudelman now seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

After reviewing and considering the medical opinions and records, the ALJ evaluated Nudelman's disability based on the following severe impairments: degenerative disc disease of the cervical and lumbar spines, carpal tunnel syndrome, ulnar neuropathy, and osteoarthritis of the hips. (Id. at 19-21.) In making this determination, she reviewed the entire record, including medical records and opinions and statements from Nudelman. (Id. at 18-27.) She also evaluated his “medically determinable mental impairment of a depressive disorder” and determined that it “does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore non-severe.” (Id. at 19; see Id. at 19-21.) When making the mental health determination, she reviewed the entire record, including medical records and statements from Nudelman, opinion evidence, and “the four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1) . . . known as the paragraph B criteria.” (Id. at 19.) She found that Nudelman “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (Id. at 21.)

Next, the ALJ calculated Nudelman's residual functional capacity (“RFC”). She determined that he had the RFC “to perform light work as defined in 20 CFR 404.1567(b) except [he] cannot climb ladders, ropes, or scaffolds. [He] can frequently balance, stoop, kneel, crouch, or crawl.” (Id. at 21; see Id. at 21-26.) When determining his RFC, she analyzed conflicting medical and opinion evidence. (Id. at 21-26.) Nevertheless, she found that the medical record demonstrates functional abilities and behaviors inconsistent with the duration, frequency, and severity of his alleged limitations. (Id.) Based on his RFC, she determined that he could perform past relevant work as a physician as generally performed, but not as he claimed he performed it. (Id. at 26-27.) Accordingly, she found that he was not disabled during the relevant period. (Id. at 27.)

II. STANDARD OF REVIEW

In determining whether to reverse an ALJ's decision, the district 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 may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine whether substantial evidence supports a decision, the Court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation omitted). Finally, the Court may not reverse an ALJ's decision on account of an error that is harmless. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). “The burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Molina v. Astrue, 674 F.3d 1104, 1119 n.11 (9th Cir. 2012) (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). “An error is harmless if it is inconsequential to the ultimate nondisability determination, or if the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citations and internal quotation marks omitted).

To determine whether a claimant is disabled, 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, but the burden shifts to the Commissioner at step five. 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, and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. 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 claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where the ALJ 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 so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

III. DISCUSSION

Nudelman raises three arguments. First, he argues that the ALJ failed to properly weigh the medical opinion evidence. (Doc. 18 at 13-22; Doc. 29 at 6-7.) Second, he argues that the ALJ improperly considered his mental and functional limitations when determining his RFC. (Doc. 18 at 3-13; Doc. 29 at 2-6.) Third, he argues that Andrew Saul's appointment constituted a violation of separation of powers. (See Doc. 18 at 22-25; Doc. 29 at 8-25.) As a result, he did not legally exercise power as Acting Commissioner. (See Id.) Therefore, Nudelman argues, the ALJ's authority is “constitutionally defective” because her power derives from her appointment by Andrew Saul. (Doc. 18 at 22; see Doc. 18 at 22-25; Doc. 29 at 8-25.)

A. Medical Opinion Evidence

In 2017, the rules for evaluating medical evidence were revised. For claims filed on or after March 27, 2017, the revised rules apply. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (January 18, 2017). Under the revised rules, all evidence an ALJ receives is considered, but the rules create specific articulation requirements regarding how medical opinions and prior administrative medical findings are considered. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The revised rules do not require an ALJ to defer to or assign every medical opinion a specific evidentiary weight. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ determines the persuasiveness of the piece of evidence's findings based on factors outlined in the regulations. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The most important factors are consistency and supportability, but the regulations list others that may be considered: the treatment relationship, specialization, and whether the source has familiarity with other evidence in the claim or an understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(a), (c), 416.920c(a), (c).

Regardless of whether the source is an “accepted medical source[] ” the revised rules require ALJs to articulate how they consider medical opinions from all medical sources. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). The revised rules also expanded the list of acceptable medical sources to include licensed audiologists, licensed advance practice registered nurses, and licensed physician assistants. See 20 C.F.R. §§ 404.1502, 416.902. These articulation requirements do not apply to the consideration of evidence from...