Mix v. O'Malley

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 KIMBERLY ELIZABETH MIX, Case No. 3:24-cv-00387-CLB 5 Plaintiff, ORDER GRANTING MOTION FOR REMAND 6 v. [ECF No. 12] 7 LELAND DUDEK,1 Acting Commissioner of the Social 8 Security Administration, — 9 — Defendant. — 10 — 11 This case involves the judicial review of an administrative action by the 12 Commissioner of Social Security (“Commissioner”) denying Kimberly Elizabeth Mix’s 13 (“Mix”) application for disability insurance benefits pursuant to Title II of the Social Security 14 Act. Currently pending before the Court is Mix’s motion for reversal and/or remand. (ECF 15 No. 12.) The Commissioner filed a response, (ECF No. 15), and Mix replied, (ECF No. 16 16). Having reviewed the pleadings, transcripts, and the Administrative Record (“AR”), 17 (ECF No. 11), the Court grants Mix’s motion for remand, (ECF No. 12). 18 I. STANDARDS OF REVIEW 19 A. Judicial Standard of Review 20 This Court’s review of administrative decisions in social security disability benefits 21 cases is governed by 42 U.S.C. § 405 (g). See Akopyan v. Barnhart, 296 F.3d 852 , 854 22 (9th Cir. 2002). Section 405(g) provides that “[a]ny individual, after any final decision of 23 the Commissioner of Social Security made after a hearing to which he was a party, 24 irrespective of the amount in controversy, may obtain a review of such decision by a civil 25 action . . . brought in the district court of the United States for the judicial district in which — 26 — — 27 — 1 Leland Dudek is now the Acting Commissioner of Social Security and is — 28 — 1 the plaintiff resides.” The Court may enter, “upon the pleadings and transcript of the record, 2 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 3 Security, with or without remanding the cause for a rehearing.” Id. 4 The Court must affirm an Administrative Law Judge’s (“ALJ”) determination if it is 5 based on proper legal standards and the findings are supported by substantial evidence 6 in the record. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see 7 also 42 U.S.C. § 405 (g) (“findings of the Commissioner of Social Security as to any fact, 8 if supported by substantial evidence, shall be conclusive”). “Substantial evidence is more 9 than a mere scintilla but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211 , 10 1214 n.1 (9th Cir. 2005) (internal quotation marks and citation omitted). “It means such 11 relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated 13 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Webb v. Barnhart, 433 F.3d 14 683, 686 (9th Cir. 2005). 15 To determine whether substantial evidence exists, the Court must look at the 16 administrative record as a whole, weighing both the evidence that supports and 17 undermines the ALJ’s decision. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995) 18 (citation omitted). Under the substantial evidence test, a court must uphold the 19 Commissioner’s findings if they are supported by inferences reasonably drawn from the 20 record. Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 21 “However, if evidence is susceptible of more than one rational interpretation, the decision 22 of the ALJ must be upheld.” Orteza, 50 F.3d at 749 (citation omitted). The ALJ alone is 23 responsible for determining credibility and for resolving ambiguities. Meanel v. Apfel, 172 24 F.3d 1111 , 1113 (9th Cir. 1999). 25 It is incumbent on the ALJ to make specific findings so that the Court does not 26 speculate as to the basis of the findings when determining if substantial evidence supports 27 the Commissioner’s decision. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 28 1990). The ALJ’s findings should be as comprehensive and analytical as feasible and, 1 where appropriate, should include a statement of subordinate factual foundations on which 2 the ultimate factual conclusions are based, so that a reviewing court may know the basis 3 for the decision. See id. 4 B. Standards Applicable to Disability Evaluation Process 5 The individual seeking disability benefits bears the initial burden of proving 6 disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the 7 individual must demonstrate the “inability to engage in any substantial gainful activity by 8 reason of any medically determinable physical or mental impairment which can be 9 expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 10 423(d)(1)(A). More specifically, the individual must provide “specific medical evidence” in 11 support of their claim for disability. See 20 C.F.R. § 404.1514 . If the individual establishes 12 an inability to perform their prior work, then the burden shifts to the Commissioner to show 13 that the individual can perform other substantial gainful work that exists in the national 14 economy. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). 15 The first step requires the ALJ to determine whether the individual is currently 16 engaging in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520 (b), 416.920(b). 17 SGA is defined as work activity that is both substantial and gainful; it involves doing 18 significant physical or mental activities, usually for pay or profit. 20 C.F.R. §§ 404.1572 (a)- 19 (b), 416.972(a)-(b). If the individual is currently engaging in SGA, then a finding of not 20 disabled is made. If the individual is not engaging in SGA, then the analysis proceeds to 21 the second step. 22 The second step addresses whether the individual has a medically determinable 23 impairment that is severe or a combination of impairments that significantly limits the 24 individual from performing basic work activities. 20 C.F.R. §§ 404.1520 (c), 416.920(c). An 25 impairment or combination of impairments is not severe when medical and other evidence 26 establish only a slight abnormality or a combination of slight abnormalities that would have 27 no more than a minimal effect on the individual’s ability to work. 20 C.F.R. §§ 404.1521 , 28 416.921; Social Security Rulings (“SSRs”) 85-28 and 96-3p. If the individual does not have 1 a severe medically determinable impairment or combination of impairments, then a finding 2 of not disabled is made. If the individual has a severe medically determinable impairment 3 or combination of impairments, then the analysis proceeds to the third step. 4 The third step requires the ALJ to determine whether the individual’s impairment or 5 combination of impairments meets or medically equals the criteria of an impairment listed 6 in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520 (d), 404.1525, 7 404.1526, 416.920(d), 416.925, 416.926. If the individual’s impairment or combination of 8 impairments meets or equals the criteria of a listing and meets the duration requirement 9 ( 20 C.F.R. §§ 404.1509 , 416.909), then a finding of disabled is made. 20 C.F.R. §§ 10 404.1520(h), 416.920(h). If the individual’s impairment or combination of impairments 11 does not meet or equal the criteria of a listing or meet the duration requirement, then the 12 analysis proceeds to the next step. 13 Prior to considering step four, the ALJ must first determine the individual’s residual 14 functional capacity (“RFC”). 20 C.F.R. §§ 404.1520 (e), 416.920(e). The RFC is a function15 by-function assessment of the individual’s ability to do physical and mental work-related 16 activities on a sustained basis despite limitations from impairments. SSR 96-8p. In making 17 this finding, the ALJ must consider all the symptoms, including pain, and the extent to 18 which the symptoms can reasonably be accepted as consistent with the objective medical 19 evidence and other evidence. 20 C.F.R. §§ 404.1529 and 416.929; SSRs 96-4p, 96-7p. 20 To the extent that objective medical evidence does not substantiate statements about the 21 intensity, persistence, or functionally-limiting effects of pain or other symptoms, the ALJ 22 must make a finding on the credibility of the individual’s statements based on a 23 consideration of the entire case record. The ALJ must also consider opinion evidence in 24 accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 9625 2p, 96-5p, 96-6p, and 06-3p. 26 After making the RFC determination, the ALJ must then turn to step four to 27 determine whether the individual has the RFC to perform their past relevant work. 20 28 C.F.R. §§ 404.1520 (f), 416.920(f). Past relevant work means work performed either as the 1 individual actually performed it or as it is generally performed in the national economy 2 within the last 15 years or 15 years prior to the date that disability must be established. In 3 addition, the work must have lasted long enough for the individual to learn the job and 4 performed at SGA. 20 C.F.R. §§ 404.1560 (b), 404.1565, 416.960(b), 416.965. If the 5 individual has the RFC to perform their past work, then a finding of not disabled is made. 6 If the individual is unable to perform any past relevant work or does not have any past 7 relevant work, then the analysis proceeds to the fifth and final step. 8 The fifth and final step requires the ALJ to determine whether the individual can do 9 any other work considering their RFC, age, education, and work experience. 20 C.F.R. §§ 10 404.1520(g), 416.920(g). If the individual can do other work, then a finding of not disabled 11 is made. Although the individual generally continues to bear the burden of proving 12 disability at this step, a limited evidentiary burden shifts to the Commissioner. The 13 Commissioner is responsible for providing evidence that demonstrates that other work 14 exists in significant numbers in the national economy that the individual can do. Lockwood 15 v. Comm’r, Soc. Sec. Admin., 616 F.3d 1068 , 1071 (9th Cir. 2010). 16 II. CASE BACKGROUND 17 A. Procedural History 18 Mix applied for disability insurance benefits (“DIB”) on March 23, 2022, with an 19 alleged disability onset date of March 1, 2019. (AR 17, 211.) Mix’s application was denied 20 initially on July 20, 2022, and again upon reconsideration on June 20, 2023. (AR 17, 66, 21 76.) Mix subsequently requested an administrative hearing and on January 23, 2024, Mix 22 and her attorney appeared at a telephonic hearing before an ALJ. (AR 17, 43-65.) A 23 vocational expert (“VE”) also appeared at the hearing via telephone. (Id.) The ALJ issued 24 a written decision on April 21, 2024, finding that Mix was not disabled. (AR 14-42.) Mix 25 appealed, and the Appeals Council denied review. (AR 1-6.) Accordingly, the ALJ’s 26 decision became the final decision of the Commissioner. 27 Having exhausted all administrative remedies, Mix filed a complaint for judicial 28 review on August 28, 2024. (See ECF No. 1-1.) On October 28, 2024, the Commissioner 1 filed the Certified Administrative Record. (ECF No. 11.) On December 26, 2024, Mix filed 2 a Motion to Remand and/or Reverse. (ECF No. 12.) On January 27, 2025, the 3 Commissioner replied. (ECF No. 15.) On February 14, 2025, Mix replied. (ECF No. 16.) 4 B. ALJ’s Decision 5 In the written decision, the ALJ followed the five-step sequential evaluation process 6 set forth in 20 C.F.R. §§ 404.1520 and 416.920. (AR 14-42.) Ultimately, the ALJ found Mix 7 had multiple severe impairments and could not perform any past relevant work but that 8 based on the ALJ’s RFC assessment, Mix could perform other work that existed in 9 significant numbers in the national economy. (Id.) Thus, the ALJ found Mix had not been 10 under a disability as defined in the Social Security Act from the alleged onset date, March 11 1, 2019, through the date of the decision. (Id.) 12 In making this determination, the ALJ started at step one. Here, the ALJ found Mix 13 had not engaged in substantial gainful activity since the date of the current application, 14 March 23, 2022. (AR 19.) At step two, the ALJ found Mix had the following severe 15 impairments: attention deficit disorder or attention deficit hyperactivity disorder, bipolar 16 disorder, anxiety, and schizoaffective disorder/manic type. (AR 20-21.) The ALJ found that 17 Mix’s “medically determinable impairments [that] significantly limit the ability to perform 18 basic work activities.” (AR 20.) The ALJ also found Mix had “non-severe physical 19 impairments that have no more than a minimal effect on her ability to perform basic work 20 activities.” (AR 21.) 21 At step three, the ALJ found Mix did not have an impairment or combination of 22 impairments that either met or medically equaled the severity of those impairments listed 23 in 20 C.F.R. Part 404, Subpart P, Appendix. 1; 20 C.F.R. §§ 404.1520 (d), 404.1525, and 24 404.1526. (AR 21-23.) The ALJ did find that claimant had “moderate limitations” in 25 “understanding, remembering, or applying information,” “interacting with others,” and 26 “concentrating, persisting, or maintaining pace,” and a “mild limitation” in “adapting or 27 managing oneself.” (AR 21-23.) 28 Next, at step four, the ALJ determined the following RFC for Mix: 1 [A] full range of work at all exertional levels but with the following nonexertional limitations: simple tasks; will be off task 3-5% of the workday; 2 occasional public and coworker interaction with no tandem tasks and no transactional interactions; occasional supervisory interaction; and — 3 — occasional changes in the work setting. — 4 — (AR 23.) The ALJ found that Mix’s medically determinable impairments could reasonably — 5 — be expected to cause some of the symptoms alleged. (AR 27.) However, the ALJ also — 6 — found Mix’s statements concerning the intensity, persistence, and limiting effects of those — 7 — symptoms were not entirely consistent with the medical opinions and other evidence in — 8 — the record. (AR 25-37) In reaching this conclusion, the ALJ reviewed and discussed the — 9 — objective medical evidence, medical opinions, and other evidence in the record. (Id.) ALJ — 10 — found Mix’s subjective limitations to be unreliable, particularly noting that Mix made — 11 — inconsistent statements about important facts and sometimes was inconsistent with the — 12 — doctors and clinicians. (AR 32.) The ALJ acknowledged that Mix had no past relevant work — 13 — and moved to step five of the analysis. (AR 35.) — 14 — At step five, relying on the testimony of the VE, the ALJ determined that based on — 15 — Mix’s age, education, work experience, and RFC, Mix would not be able to perform her — 16 — past relevant work but found that there are other jobs that in exist in significant numbers — 17 — in the national economy that Mix could perform. (AR 35-36.) Relying on the testimony of — 18 — the VE and the foregoing analysis, Mix would be able to perform work as a hospital cleaner — 19 — and a hand packer. (AR 36.) Accordingly, the ALJ found Mix had not been under a — 20 — disability since the date of the pending application, March 23, 2022, through the date of — 21 — the decision, and denied Mix’s claim. (AR 36-37.) — 22 — III. ISSUE — 23 — Mix seeks judicial review of the Commissioner’s final decision denying DIB under — 24 — Title II of the Social Security Act. (ECF No. 12.) Mix raises one issue for this Court’s review: — 25 — whether substantial evidence supports the ALJ’s RFC determination. (Id.) — 26 — /// — 27 — /// — 28 — 1 IV. DISCUSSION 2 Mix argues the ALJ’s RFC determination lacks the support of substantial evidence. 3 (ECF No. 12 at 7-15.) Specifically, Mix challenges the ALJ’s finding that Mix would be off4 task approximately three to five percent of the workday. (Id.) According to Mix, the ALJ 5 erred because the specific limitation that should be off task three to five percent of the 6 workday “is unsupported” and that the limitation is “based on nothing more than [the ALJ’s] 7 lay opinion.” (Id. at 7-8.) Mix argues remand is appropriate because the “ALJ fail[ed] to 8 build the logical bridge” and “show her work” between the off-task percentage and the 9 medical evidence. (ECF No. 16 at 5.) The Commissioner argues the ALJ did not error 10 because the ALJ viewed the entire record and the ALJ’s decision does not mandate 11 remand even though no medical opinion or record justified the exact off-task percentage. 12 (ECF No. 15 at 3.) 13 The Court agrees with Mix and finds the ALJ erred in its RFC finding. While the ALJ 14 discussed in length Mix’s subjective limitations and why they should be rejected, the Court 15 cannot reconcile the ALJ’s ultimate RFC finding when reviewing the record as a whole. At 16 step two, the ALJ determined Mix suffers from multiple severe impairments, including 17 attention deficit disorder or attention deficit hyperactivity disorder; bipolar disorder; anxiety; 18 and schizoaffective disorder/manic type. (AR 21.) Thereafter, the ALJ found these severe 19 impairments to arise moderate and mild limitations at step three. (AR 21.) However, at 20 step four, the ALJ found that Mix’s appropriate limitation for simple tasks was only three 21 to five percent of the workday. (AR 23.) In reviewing the record, the Court cannot 22 determine how the ALJ determined “3-5%” off-task was the appropriate limitation. (AR 23.) 23 At the January 23, 2024 hearing, the ALJ posed a hypothetical to the vocational expert 24 when asking what jobs Mix could do with a three to five percent limitation. (AR 62.) That 25 same limitation appeared in the ALJ’s decision but without a single reference to anything 26 in the record as to how the ALJ came to “3-5%” limitation. The ALJ cites no medical opinion 27 or recognized authority that provides basis for this limitation. “While the ALJ ‘can pick and 28 choose between opinions expressed by the experts,’ when an ALJ decides severity or 1 residual functional capacity ‘without the support of any of the medical opinion evidence,’ 2 this is error.” See Walker v. Comm’r of Soc. Sec., No. 2:22-cv-1871-EJY, 2024 WL 64784 , 3 at *6 (D. Nev. Jan. 4, 2024) (quoting Holtan v. Kijakazi, No. 2:22-cv-01222-VCF, 2023 WL 4 2424648, at *3 (D. Nev. Mar. 9, 2023)). The ALJ’s decision here was not “comprehensive 5 and analytical as feasible” such that the Court could determine the basis of the off-task 6 limitations within her RFC assessment. See Gonzales, 914 F.2d at 1200 ; see also Lovato 7 v. Berryhill, No. 6:16-cv-00046-JR, 2017 WL 2371096 , at *6 (D. Or. May 9, 2017) (“Based 8 on this record, the Court is unable to discern what substantial evidence supported the 9 ALJ's conclusion that plaintiff would be off task 9% of the time, beyond the VE's testimony 10 that a larger percentage would necessitate a finding of disability.”); Oliverson v. Berryhill, 11 No. 2:16-cv-01538-KLS, 2017 WL 1381814 , at *11 (W.D. Wash. Apr. 17, 2017) (“The 12 Court also agrees with plaintiff that the ALJ failed to point to any evidence in the record — 13 or offer any explanation — to support the limitation of being off task for up to 9% of the 14 time. Accordingly, the ALJ erred here as well.”). 15 When the ALJ does not “explain the evidentiary basis” for an aspect of their RFC 16 assessment, remand is appropriate. Leitz v. Kijakazi, No. 22-35356, 2023 WL 4342114 , 17 at *2 (9th Cir. Jul. 5, 2023). The court “cannot substitute [its] conclusions for the ALJ's, or 18 speculate as to the grounds for the ALJ's conclusions.” Treichler v. Comm'r of Soc. Sec. 19 Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citing Bunnell v. Sullivan, 947 F.2d 341 , 346 20 (9th Cir. 1991)). The ALJ’s failure to "build an accurate and logical bridge" from the record 21 to her RFC assessment, and failure to “provide sufficient reasoning” precludes the Court 22 from conducting meaningful review. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 23 In this case, the Court cannot find the logical bridge between a finding of multiple 24 severe impairments from step two that create moderate and mild limitations at step three 25 of the analysis to an RFC assessment at step four that have virtually no limitations. The 26 ALJ herself notes that the “above medically determinable impairments significantly limit 27 the ability to perform basic work activities.” (AR 20.) The ALJ also states that the “claimant 28 has also been diagnosed with schizophrenic spectrum disorder and other psychotic 1 disorders, but the longitudinal record does not substantially support that diagnosis.” (AR 2 21.) It is unclear how the ALJ concluded that Mix’s diagnosed mental disorders—which 3 several medical practitioners found would cause moderate limitations—were severe 4 impairments but also found that the record did not support the diagnoses. See Vaughn v. 5 Berryhill, 242 F. Supp. 3d 998, 1008 (E.D. Cal. 2017) ("[A]n ALJ is not allowed to use his 6 own medical judgment in lieu of that of a medical expert."). 7 The Court acknowledges the ALJ’s concerns regarding the reliability of Mix’s 8 subjective limitations and the medical opinions within the record. On remand, the ALJ 9 should explain her RFC assessment more thoroughly as to the off-task percentage and 10 establish the logical bridge between the severe impairments she found at step two and 11 the moderate limitations at step three to the limitations implements into the RFC at step 12 four. See Lambert, 980 F.3d at 1277 . The ALJ should reconcile the moderate or significant 13 limitations she finds that result from Mix’s severe impairments with her ultimate RFC 14 assessment. The ALJ should also reconsider the entire record in light of this Court’s and 15 the Ninth Circuit’s precedent regarding claimants with disorders as what Mix has been 16 allegedly diagnosed with: 17 [E]ven if Plaintiff experienced fair or relatively good mental health in between periods of decompensation, as a matter of logic, this does not 18 mean that she will not continue to experience prolonged periods of decompensation (even if she takes her medication). Her medical providers — 19 — continued to note the presence of anxiety or depression and continued to 20 diagnose her with bipolar disorder or schizoaffective disorder as they observed Plaintiff's improvement in terms of having a “good” or “ok” mood, 21 an appropriate affect, and appropriate thought process or content. As the Ninth Circuit has held, “[g]iven the episodic nature of bipolar disorder, short22 lived improvements in functioning are consistent with the diagnosis and cannot, by themselves, constitute substantial evidence to override treating — 23 — source opinions that [a plaintiff] was significantly impaired.” Buck v. Colvin, — 24 — 540 F. App’x 772, 773 (9th Cir. 2023). As such, the Ninth Circuit has also held that a Commissioner can “erroneously” over-rely on “indications in the 25 medical record that [the plaintiff] was ‘doing well,’ because doing well for the purposes of a treatment program has no necessary relation to a [plaintiff’s] 26 ability to work or to her work-related functional capacity.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). — 27 — 28 Kiphart v. Berryhill, No. 2:18-cv-02217-BNW, 2020 WL 1133254 , at *17 (D. Nev. Mar. 6, 1 || 2020). 2 Because the Court finds error in the ALJ’s RFC assessment, the Court agrees with 3 || that remand is appropriate for further proceedings. Additional proceedings may remedy 4 || the defects in the original administrative proceedings. See Garrison, 759 F.3d at 1011 . 5 || V. CONCLUSION 6 Based on the foregoing, the Court grants Mix’s motion to remand, (ECF No. 12). 7 Accordingly, IT IS THEREFORE ORDERED that Mix’s motion for remand, (ECF 8 || No. 12), be GRANTED. 9 IT IS FURTHER ORDERED that this matter be REMANDED to the agency for 10 || further proceedings in accordance with this Order. 11 IT IS SO ORDERED. 12 DATED: March 26, 2025 * — 13 — 14 UNITED & a JUDGE — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —