Parker v. Kijakazi

ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF DEFENDANT COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF

(Doc. 25, 28)

GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff Wenonah Parker (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 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 Honorable Gary S. Austin, United States Magistrate Judge.^[1] See Docs. 25, 28, 33. After reviewing the record the Court finds that substantial evidence and applicable law support the ALJ's decision. Plaintiff's appeal is therefore denied.

II. Factual and Procedural Background^[2]

On April 14, 2016 Plaintiff applied for benefits alleging disability due mental illness and delusional disorder persecutory somatic. AR 1844. The Commissioner denied the applications initially on February 10, 2017 and on reconsideration on June 21, 2017. AR 1757, 1767.

Plaintiff requested a hearing which was held before an Administrative Law Judge (the “ALJ”) on February 13, 2019. AR 1710-39. On March 11, 2019 the ALJ issued a decision denying Plaintiff's application. AR 26-42. The Appeals Council denied review on March 31, 2020. AR

1-7. On April 28, 2020 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 internal quotation marks 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 his 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 April 14, 2016. AR 31. At step two the ALJ found that Plaintiff had the following severe impairments: delusional disorder, somatic and persecutory type, amphetamine and alcohol use disorders. AR 32. The ALJ also determined at step two that Plaintiff's obesity was non-severe. AR 32-33. At step three the ALJ concluded as follows: 1) that Plaintiff's substance use disorder did meet listing 12.03; 2) that if Plaintiff stopped the substance abuse, the remaining impairments would still be severe but that those impairment or combination thereof would not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 32-34.

Prior to step four the ALJ evaluated Plaintiff's residual functional capacity (RFC) and concluded that, if Plaintiff stopped substance use she would have the RFC to perform the full range of work at all exertional levels with only one non-exertional limitation, namely limited public contact. AR 34-37. At step four the ALJ concluded that, if Plaintiff stopped substance use, she would be able to perform her past relevant work as an office clerk. AR 37.

Accordingly, the ALJ concluded that Plaintiff's substance use disorder was a contributing

factor material to the determination of disability, that Plaintiff would not be disabled if she stopped the substance use, and that Plaintiff therefore was not disabled within the meaning of the Social Security Act at any time since her application date of April 14, 2016. AR 37-38.

V. Issues Presented

Plaintiff asserts three claims of error: 1) that the Agency erred in failing to find that the records submitted to the Appeals Council directly contradict the ALJ's findings and might change the outcome of the administrative hearing; 2) that the ALJ erred in failing to develop the record with an assessment of Plaintiff's limitations from a treating or examining source, improperly relying on his own lay interpretation of medical data; and 3) that the ALJ failed to include work-related limitations in the RFC consistent with the nature and intensity of Plaintiff's limitations, and failed to offer clear and convincing reasons for discounting Plaintiff's subjective complaints.

A. Records Submitted to the Appeal's Council

1. Applicable Law

The Social Security Act grants district courts jurisdiction to review only final decisions of the Commissioner. 42 U.S.C. § 405(g); Klemm v. Astrue, 543 F.3d 1139, 1144 (9^th Cir. 2008). An Appeals Council denial of a request for review is a non-final agency action not subject to judicial review because when review is denied, the ALJ's decision becomes the final decision of the Commissioner. Taylor v. Commissioner of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9^th Cir. 2011).

No later than five business days before the date of the hearing, a claimant must submit all written evidence to the administrative law judge who will conduct the hearing in the claimant's case. 20 C.F.R. § 416.1435(a). The ALJ may also accept information after the five-day deadline prior to issuing the hearing decision under circumstances enumerated in 20 C.F.R. § 416.1435(b).

In limited circumstances, a claimant may submit new and material evidence to the Appeals Council that relates to the period on or before the ALJ's decision. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); 20 C.F.R. § 416.1470(a)(5). Evidence is material if

it bears “directly and substantially on the matter in dispute, ” and there is a “reasonable possibility” that the new evidence would have changed the outcome. Tudor v. Saul, 484 F.Supp.3d 717, 726 (N.D. Cal. 2020) (citing Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001)).

2. Analysis

The following pertinent evidence was before the ALJ at the time of the decision. Plaintiff was committed to the Department of Mental Health from November 17, 2000 through April 12, 2006 in connection with a firearms offense, prior to which she abused methamphetamine and suffered from delusions. AR 1955, 1969-71. Following her release to outpatient treatment in 2006, her delusions returned, she tested positive for alcohol, and she was committed again from July 6, 2009 through April 4, 2016 to receive treatment for delusions and substance abuse. Id. At the time of her release on April 4, 2016 she was noted not...