Calles v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CHRISTINA S.C., Case No.: 24cv84-CAB-DDL 12 Plaintiff, ORDER: (1) ADOPTING REPORT 13 v. AND RECOMMENDATION [Doc. No. 17]; (2) AFFIRMING THE 14 COMMISSIONER OF SOCIAL DECISION OF THE SECURITY, 15 COMMISSIONER; AND (3) Defendant. DIRECTING JUDGMENT BE [16] ENTERED IN THE 17 COMMISSIONER’S FAVOR [19] Pending before the Court is the Report and Recommendation (“Report”) of [20] Magistrate Judge David D. Leshner, filed on December 2, 2024, recommending that the [21] Court: (1) approve and adopt the Report; (2) affirm the decision of the Commissioner; [22] and (3) direct that judgment be entered in the Commissioner’s favor. [Doc. No. 17.] On [23] December 10, 2024, Plaintiff filed objections to the Report. [Doc. No. 18.] On [24] December 23, 2024, Defendant filed a reply to the objections. [Doc. No. 19.] Having [25] considered the parties’ arguments and for the reasons stated herein, the Court finds the [26] Magistrate Judge conducted a well-reasoned and thorough analysis, and the Court [27] ADOPTS the Report. [28] 1 BACKGROUND 2 On January 5, 2021, Plaintiff applied for disability insurance benefits under 3 Title II of the Social Security Act (“Act”) and for supplemental security income under 4 Title XVI of the Act. See Certified Administrative Record (“AR”) [Doc. No. 5 9] at 73-75. Plaintiff alleged she had been unable to work since June 16, 2019 due 6 to various mental and physical impairments. Id. After her application was denied 7 at the initial stage and upon reconsideration, Plaintiff requested a hearing before 8 an administrative law judge (“ALJ”), which took place on January 18, 2023 before 9 ALJ Kim Field. Id. at 50-72. The ALJ issued an unfavorable decision on February 1, 10 2023, having concluded Plaintiff “has not been under a disability, as defined in [the Act], 11 from June 16, 2019, through the date of [the] decision.” Id. at 30, 41. On November 21, 12 2023, the Appeals Council denied review, and the ALJ’s decision became final. See id. at 13 1-3. This appeal timely followed. 14 LEGAL STANDARDS 15 The Social Security Act entitles a claimant to disability benefits if he is unable to 16 “engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 19 U.S.C. §§ 416 (i), 423(d)(1)(A). To qualify for benefits, the impairment must result from 20 “anatomical, physiological, or psychological abnormalities which are demonstrable by 21 medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 22 423(d)(3); Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). Further, the 23 impairment must be of “such severity that he is not only unable to do his previous work 24 but cannot, considering his age, education, and work experience, engage in any other 25 kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 26 423(d)(2)(A). 27 An individual may seek judicial review of the Commissioner of Social Security’s 28 final agency decision. 42 U.S.C. §§ 405 (g), 1383(c)(3). However, the scope of review is 1 limited. A court may not overturn the Commissioner’s final action unless (1) the ALJ’s 2 findings of fact are not supported by substantial evidence, or (2) the ALJ failed to apply 3 the proper legal standards. See Flaten v. Secretary of Health and Human Svcs., 44 F.3d 4 1453, 1457 (9th Cir. 1995). 5 “Substantial evidence” means evidence a reasonable person might accept as 6 adequate to support the ALJ’s conclusion, considering the record as a whole. See 7 Richardson v. Perales, 402 U.S. 389, 401 (1971); Thomas v. Barnhart, 278 F.3d 947 , 954 8 (9th Cir. 2002). The Court must consider both the evidence that supports and detracts 9 from the Commissioner’s conclusions. See Mayes v. Massanari, 276 F.3d 453, 459 (9th 10 Cir. 2001); Desrosiers v. Sec’y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 11 1988). 12 Even if substantial evidence supports the ALJ’s findings, a court must set the 13 decision aside if the ALJ failed to apply the proper legal standards in weighing the 14 evidence and reaching a decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 15 1978). But if the evidence supports more than one rational interpretation, the court must 16 uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577 , 579 (9th Cir. 1989). 17 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636 (b)(1) set forth the 18 duties of the district court in connection with a Magistrate Judge’s report and 19 recommendation. The district court “must make a de novo determination of those 20 portions of the report . . . to which objection is made,” and “may accept, reject, or 21 modify, in whole or in part, the findings or recommendations made by the magistrate.” [22] 28 U.S.C. § 636 (b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 23 1989). 24 DISCUSSION 25 The Plaintiff objects to the Report on the following grounds: (1) the Report 26 focused “nearly exclusively on the substantial evidence standard, to the exclusion of 27 addressing” alleged legal errors [Doc. No. 18 at 2]; (2) Judge Leshner provided a 28 misleading statement of law when quoting the published Ninth Circuit case of Stubbs1 Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2009) [Doc. No. 18 at 4]; and (3) the Report 2 improperly relies on Ford v. Saul, 950F.3d 1141 (9th Cir. 2020) [Doc. No. 18 at 6.]. 3 1. Substantial Evidence/Legal Errors. 4 Plaintiff contends that the Report focused “nearly exclusively on the substantial 5 evidence standard, to the exclusion of addressing” alleged legal errors lacks merit. [Doc. 6 No. 18 at 2.] Plaintiff suggests that the Report fails to address Plaintiff’s claim that the 7 ALJ’s moderate findings at steps two and three were “not accounted for” in the residual 8 functional capacity finding under the regulations “and the discrepancy was not 9 explained.” [Doc. No. 18 at 3.] But the Report does address this allegation. It identifies 10 the appropriate regulation explaining how the agency assesses a claimant’s residual 11 functional capacity (RFC), and it cites legal authority explaining that the RFC need not 12 exactly mirror the findings at steps two and three. [Doc. No. 17 at 7-8.] The Report then 13 explains how the ALJ’s RFC adequately tracks with medical evidence, and how that 14 evidence is consistent with the moderate findings at steps two and three. [Doc. No. 17 at 15 7-8.] Therefore, the Report appropriately concluded that the ALJ’s decision is free of 16 legal error and supported by substantial evidence. 17 2. Stubbs. 18 Plaintiff contends that Judge Leshner provided a misleading statement of law when 19 quoting the published Ninth Circuit case of Stubbs-Danielson v. Astrue, 539 F.3d 1169 20 (9th Cir. 2008) (along with other published Ninth Circuit cases), which generally outlines 21 that an ALJ is responsible for translating and incorporating opinion evidence about the 22 severity of a claimant’s mental impairments into the RFC finding. [Doc. No. 18 at 4-6.] 23 According to Plaintiff, Judge Leshner should have followed Brink v. Comm’r of Soc. Sec. 24 Admin., 343 Fed. Appx. 211 (9th Cir. 2009), which held that moderate restrictions do not 25 translate to simple, repetitive work. First, to the extent Plaintiff attempts to raise a new 26 argument in reliance on Brink that was not raised in her prior briefing, her claims are 27 waived. McKay v. Ingleson, 558 F.3d 888 , 891 n.5 (9th Cir. 2009) (an argument “not 28 raised clearly and distinctly in the opening brief” is waived.). Moreover, Brink is an 1 unpublished opinion that courts in this circuit have routinely found at odds with the 2 published and binding and published authority cited in the Report. See Rowe v. Comm'r 3 of Soc. Sec. Admin., No. CV-17-02558-PHX-GMS, 2018 WL 6168011 , at *5 (D. Ariz. 4 Nov. 26, 2018) (calling Brink “an outlier”); Jamie Allen W. v. O'Malley, No. 4:23-CV5 00202-REP, 2024 WL 1465924 , at *5, FN 2 (D. Idaho Apr. 4, 2024) (explaining why 6 Brink is not compelling authority and should not be applied expansively). Therefore, the 7 Report correctly cites Stubbs-Danielson as controlling authority, and appropriately 8 concludes that the medical evidence “amply supports the restrictions the ALJ 9 incorporated into the RFC.” [Doc. No. 17 at 7.] 10 3. Ford. 11 Plaintiff asserts that the Report improperly relies on Ford v. Saul, 950 F.3d 1141 , 12 1155 (9th Cir. 2020), a case Plaintiff claims “directly contradicts” the revised regulations. 13 [Doc. No. 18 at 7.] While Plaintiff is correct that Ford was decided under the prior 14 regulations, it still has persuasive value for claims governed by the revised regulations. In 15 fact, the Report also cites Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023), which 16 was decided under the revised regulations and itself relied on Ford. The Kitchen court 17 expressly cited the same language from Ford that is cited in the Report regarding “the 18 discounting of a medical opinion set forth in a checkbox form with little to no 19 explanation.” Id. at 740-41 . Therefore, the Report here does not rely on Ford as a 20 controlling interpretation of the new regulations; rather, it appropriately references 21 persuasive language in Ford—the same language referenced by the Ninth Circuit in cases 22 such as Kitchen decided under the revised regulations. 23 CONCLUSION 24 For the reasons set forth above, IT IS HEREBY ORDERED that: 25 1. The Magistrate Judge’s Report and Recommendation [Doc. No. 17] is 26 ADOPTED; 27 2. The Plaintiff’s objections to the Report and Recommendation [Doc. No. 18] 28 are REJECTED; 1 3. The decision of the Commissioner is AFFIRMED; 2 4. The Clerk of Court shall ENTER JUDGMENT for the Commissioner and 3 CLOSE this case. 4 IT IS SO ORDERED. 5 Dated: January 10, 2025 € □ [6] Hon. Cathy Ann Bencivengo 7 United States District Judge