Venedicto v. Kijakazi

1

NORMA LUZ VENEDICTO, Plaintiff, v. KILOLO KIJAKAZI, acting Commissioner of Social Security, Defendant.

No. 1:21-cv-00851-GSA

United States District Court, E.D. California

September 28, 2022

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

(DOC. 14, 19)

GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff Norma Luz Venedicto (“Plaintiff”') seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability insurance benefits pursuant to Title II 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. 15, 19. 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 July 19, 2017 Plaintiff applied for disability insurance benefits alleging a disability onset date of October 18, 2013 due to the following impairments: brain damage; neck problems, nerve damage, carpal tunnel; pain in her arms, shoulders, elbows, wrists, and fingers; slipped and bulging discs of her cervical, thoracic, and lumbar spine; sciatica and nerve damage on her right and left side; lower extremity nerve damage; left and right knee first and third meniscal damage; neuropathy, diabetes types 1 and 2, pancreas damage, and verities; cyst on kidney, fatty liver disease, and cyst on her head; bipolar disorder, manic depression, post-traumatic stress disorder, and schizophrenia; anger issues, panic anxiety, and paranoia; hearing loss; fibromyalgia; lupus; rheumatoid arthritis; neuropathy in her left foot; stuttering; and emotional problems. AR 948. The Commissioner denied the application initially on November 17, 2017 and on reconsideration on May 7, 2018. An initial and supplemental hearing were held before an Administrative Law Judge (the “ALJ”) on October 22, 2019 and July 23, 2020, respectively. AR 161-98; 87-128. Plaintiff had no representative at either hearing. Id. On August 3, 2020 the ALJ issued a decision denying Plaintiff's application. AR 60-79. The Appeals Council denied review on March 25, 2021. AR 1-7. On May 25, 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 alleged disability onset date of October 18, 2013. AR 63. At step two, the ALJ found that Plaintiff had the following severe impairments: bilateral carpal tunnel; polyneuropathy; fibromyalgia; bilateral hand degenerative joint disease; obesity; diabetes; degenerative disc disease of the cervical and lumbar spines with radiculopathy; left knee meniscus degeneration; chronic pain syndrome; anxiety disorder; and posttraumatic stress disorder. AR 64. The ALJ also determined at step two that Plaintiff had the following non-severe impairments: tendinitis of elbows and shoulders with cervical myofascial syndrome; right wrist subchondral cyst; left wrist negative ulnar variance without evidence of osteonecrosis; left foot dorsal and plantar enthesophytes and spurring and mild bursitis; lateral epicondylitis of elbow with injections; decreased vision requiring glasses; small hiatal hernia incidentally noted on imaging; right knee slight irregularity of the meniscus; hepatomegaly, steatosis, cholecystectomy; benign lymph node; asthma in smoker with prescribed inhaler; elevated bloodwork findings such as cholesterol; headache, other speech disturbance, other amnesia, other abnormal involuntary movements all based on self-report and not objective medical findings. AR 64-65.

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 light work as defined in 20 C.F.R. 404.1567(b) with the following limitations: never climb ladders/ropes/scaffolds; occasionally stoop, crouch, and climb ramps/stairs; occasionally overhead reach bilaterally; frequent gross and fine manipulation bilaterally; must avoid concentrated exposure to fumes, odors, dusts gases and extreme heat or cold; simple, non-tandem tasks; occasional direct interaction with the general public; ability to change from standing to seated or vice versa for up to two minutes every two hours without interference with work product; use a cane for ambulation on uneven surfaces; and the claimant is limited to frequent fine fingering bilaterally. AR 67-77.

At step four the ALJ concluded that Plaintiff could not perform her past relevant work as a case worker. AR 77. At step five, in reliance on the VE's testimony, the ALJ concluded that Plaintiff could perform other jobs existing in significant numbers in the national economy, namely: marker, housekeeper cleaner, and routing clerk. AR 78. Accordingly, the ALJ concluded that Plaintiff was not disabled at any time since her alleged disability onset date of October 18, 2013 through her date last insured of December 31, 2018. AR 79.

V. Issues Presented

Plaintiff asserts four claims of error: 1) the ALJ failed to properly evaluate the medical opinions and to properly determine Plaintiff's residual functional capacity; 2) remand is required to consider new evidence before the Appeals Council; 3) the ALJ relied on a flawed hypothetical question to the vocational expert; and, 4) the ALJ failed to properly evaluate Plaintiff's testimony.

A. The Medical Opinions and RFC

1. 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, at *2 (C.D. Cal. Mar....