(SS) Robles v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JOB ROBLES, Case No. 2:20-cv-01069-JDP (SS) 12 Plaintiff, ORDER DENYING CLAIMANT’S MOTION FOR SUMMARY JUDGMENT 13 v. ECF No. 19 14 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S 15 CROSS-MOTION FOR SUMMARY Defendant. JUDGMENT [16] ECF No. 22 [17] 18 Robles (“claimant”) challenges the final decision of the Commissioner of Social Security 19 (“Commissioner”) denying his application for disability benefits and supplemental security 20 income. ECF No. 1. He argues that the medical evidence demonstrated that he required “rest”— 21 which he interprets to mean time off-task—and that the Administrative Law Judge (“ALJ”) erred 22 by failing to account for that evidence. The Commissioner responds by arguing that the ALJ 23 accounted for claimant’s need for “rest”—interpreting the term to mean time off his feet—by 24 providing a time-limited, sit-stand option. This case thus turns primarily on the meaning of 25 “rest.” [28] 1 Both parties have moved for summary judgment. ECF Nos. 19, 22. The matter is ripe for 2 review, and this court now denies claimant’s motion for summary judgment and grants the 3 Commissioner’s cross-motion for summary judgment.1 4 I. STANDARD OF REVIEW 5 On appeal, I ask whether substantial evidence supports the factual findings of the ALJ and 6 whether the ALJ applied the correct legal standards. See Stout v. Comm’r, Soc. Sec. Admin., 454 7 F.3d 1050, 1052 (9th Cir. 2006); 42 U.S.C. § 405 (g). “‘Substantial evidence’ means more than a 8 mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person 9 might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028 , 1035 10 (9th Cir. 2007). In reviewing the application of correct legal standards, I consider whether the 11 ALJ followed regulatory guidelines and considered the appropriate factors when weighing 12 medical opinion evidence.2 See 20 C.F.R. §§ 404.1527 , 416.927; Lester v. Chater, 81 F.3d 821 , 13 830 (9th Cir. 1995). 14 While “the ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and for resolving ambiguities,” “the ALJ’s findings . . . must be supported by specific, 16 cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (internal citation omitted); 17 see Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (noting that, when an ALJ disagrees 18 with medical opinions, “[t]he ALJ must do more than offer his conclusions[; h]e must set forth his 19 own interpretations and explain why they, rather than the doctors’, are correct.”). Additionally, I 20 review only the reasons provided by the ALJ in the disability determination and will not affirm 21 based on a ground upon which the ALJ did not rely. See Brown-Hunter v. Colvin, 806 F.3d 487 , 22 492 (9th Cir. 2015) (“A clear statement of the agency’s reasoning is necessary because we can 23 affirm the agency’s decision to deny benefits only on the grounds invoked by the agency.”); 24 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the 25 reasons the ALJ asserts.”). [26] 1 Both parties have consented to magistrate judge jurisdiction. ECF Nos. 6, 9. 27 2 Because claimant filed for disability prior to March 27, 2017, the Social Security Administration’s revised rules regarding the evaluation of medical opinion evidence do not apply. 28 See 20 C.F.R. §§ 404 .1520c, 416.920c. 1 A motion for summary judgment will be granted only when the there is no genuine issue 2 of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 3 56. The burden of establishing that there is no genuine issue of material fact lies with the moving 4 party. See Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986); Nissan Fire & Marine Ins. Co. 5 v. Fritz Cos., 210 F.3d 1099 , 1102-03 (9th Cir. 2000). Once the moving party has met that 6 burden by “presenting evidence which, if uncontradicted, would entitle it to a directed verdict at 7 trial, [Fed. R. Civ. P. 56(e)(2)] shifts to [the nonmoving party] the burden of presenting specific 8 facts showing that such contradiction is possible.” British Airways Bd. v. Boeing Co., 585 F.2d 9 946, 950-52 (9th Cir. 1978); see also Nissan, 210 F.3d at 1102-03. 10 II. BACKGROUND 11 Claimant applied for disability insurance benefits and supplemental security income in 12 July 2011, alleging disability since June 24, 2009. AR 437-38, 439-47. In his disability report, 13 he stated that his ability to work is limited by cognitive difficulties and bone necrosis of the ankle. 14 AR 493. His application was denied both initially and upon reconsideration. AR 235-42. 15 Claimant then requested a hearing before an ALJ. AR 244-45. The ALJ held a hearing in May 16 2013 and issued a decision that same month finding that claimant was not disabled. AR 42-73, 17 200-21. Claimant requested review by the Appeals Council, which granted the request, found 18 legal error in the ALJ’s decision, and remanded for further proceedings. AR 222-27, 289. The 19 ALJ then held two more hearings in November 2015 and August 2016. AR 74-121. The ALJ 20 issued a second decision in September 2016, again finding that claimant was not disabled. AR 21 11-41. This time, the Appeals Council denied claimant’s request for review, at which point he 22 sought review by this court. AR 3-8, 1088-99. The court found legal error and remanded for 23 further proceedings. AR 1100-14; see Robles v. Berryhill, No. 1:17-cv-00566-BAM, 2018 WL 24 4562773, at *5 (E.D. Cal. Sep. 21, 2018). The ALJ held another hearing in January 2020, and 25 issued a third decision in February 2020, finding that claimant was not disabled. AR 985-1050. 26 Claimant requested a review of that third decision, and the Appeals Council denied the request. 27 AR 985-87. He now seeks judicial review under 42 U.S.C. §§ 405 (g), 1383(c)(3). [28] 1 a. The ALJ’s Decision 2 An ALJ determines eligibility for Social Security benefits in a five-step sequential 3 evaluation process, asking: (1) whether the claimant is engaged in substantial gainful activity; 4 (2) whether the claimant has a medical impairment (or combination of impairments) that qualifies 5 as severe; (3) whether any of the claimant’s impairments meet or medically equal the severity of 6 one of the impairments listed in the regulations; (4) whether the claimant can perform past 7 relevant work; and (5) whether the claimant can perform other specified types of work. See 8 Barnes v. Berryhill, 895 F.3d 702 , 704 n.3 (9th Cir. 2018); 20 C.F.R. § 416.920 . The burden of 9 proof is on the claimant during the first four steps of the inquiry, but shifts to the Commissioner at 10 the fifth step. See 20 C.F.R. §§ 404.1520 (f), 416.920(f); Bustamante v. Massanari, 262 F.3d 949 , 11 953-54 (9th Cir. 2001). 12 At step one, the ALJ found that claimant had not engaged in substantial gainful activity 13 since June 24, 2009, the alleged onset date.3 AR 991. At step two, the ALJ found that claimant 14 had the severe impairments of obesity; chronic right ankle sprain/strain; osteochondritis dessicans 15 of the right ankle, status post arthroscopy in 2009; and chronic regional pain syndrome. AR 991. 16 At step three, the ALJ found that claimant did not have an impairment or combination of 17 impairments that met or medically equaled the severity of any of the impairments listed in the 18 regulations. AR 997. Before proceeding to step four, the ALJ found that claimant’s RFC enabled 19 him to perform light work with no more than four hours of standing or walking per day, and a sit20 stand option every thirty minutes. AR 998-99. At step four, the ALJ found that claimant could 21 not perform past relevant work. AR 1011. At step five, the ALJ found that considering 22 claimant’s age, education, work experience, and RFC, there are jobs existing in significant 23 numbers in the national economy that he could perform. AR 1011-12. Therefore, the ALJ 24 determined that claimant was not disabled. AR 1012. 25 In arriving at these findings, the ALJ accorded substantial weight to the opinions of Drs. [26] 3 Plaintiff has received three adverse decisions from administrative hearings, the previous 27 two of which were remanded by the Appeals Council and by this court. AR 11-41, 200-21, 9851050. I consider the entire administrative record, but my review is limited to the most recent 28 decision, AR 985-1021. 1 Van Kirk, Bullard, and Wright. Dr. Van Kirk opined that claimant “should be able to sit down 2 and rest periodically for a brief period of time should he develop progressive pain in the right 3 ankle.” AR 704. State agency non-examining consultants, Drs. Bullard and Wright, endorsed Dr. 4 Van Kirk’s finding.4 AR 134, 171. 5 b. The Motions 6 In his motion for summary judgment, claimant argues that Drs. Van Kirk, Bullard, and 7 Wright all “found the limitation that [claimant] will need to rest when alternating sitting and 8 standing,” and that it is legal error to fail to account for that limitation in the RFC without 9 explaining why those findings were disregarded. ECF No. 19 at 11-14. In his opposition and 10 cross-motion for summary judgment, the Commissioner responds that claimant’s RFC 11 appropriately accounts for his limitations and, to the extent that the medical opinion evidence is 12 open to more than one interpretation, the court should defer to the ALJ’s reasonable 13 interpretation. ECF No. 22 at 8-11. 14 III. ANALYSIS 15 A claimant’s RFC is what he can still do despite his physical, mental, and other 16 limitations. See Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (citing 20 C.F.R. pt. 404, 17 subpt. P, app. 2, 200.00(c)). An ALJ’s RFC determination must be based on medical opinions 18 and the totality of the record. See 20 C.F.R. §§ 416.927 (b), 416.946(c). In determining RFC, an 19 ALJ is responsible for “determining credibility, resolving conflicts in medical testimony, and for 20 resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews 21 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In making these determinations, an ALJ must 22 account for all a claimant’s limitations. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685 , 690 23 (9th Cir. 2009) (“The hypothetical an ALJ poses to a vocational expert, which derives from the 24 RFC, must set out all the limitations and restrictions of the particular claimant. Thus, an RFC that [26] 4 Treating physician Dr. Richey stated that claimant “may need to alternate sit/stand.” AR 27 800. Consultative examiner Dr. Barnes stated that claimant could sit without limitation. AR 950. Consultative examiner Dr. Serra, providing the most recent consultative examination in April 28 2019, found that claimant could sit for six hours. AR 1220. 1 fails to take into account a claimant’s limitations is defective.”) (internal quotation and citation 2 removed). 3 Claimant’s RFC states that “[h]e requires a sit-stand option, alternating every 30 minutes 4 without time off task.” AR 998. He argues that this language fails to account for Dr. Van Kirk’s 5 finding that he “should be able to sit down and rest” at times.5 See ECF No. 19 at 10-13; AR 704. 6 Claimant’s argument thus turns on the interpretation of “rest.” The ALJ only erred to the extent 7 that the ability “to sit down and rest” necessitates “time off task.” Claimant’s interpretation is not 8 necessarily unreasonable; if “to sit down” means the same thing as “rest,” it could be seen as 9 redundant to state both. But in the context of a medical opinion that focuses on claimant’s ability 10 to stand and walk—this particular finding was included in the section regarding claimant’s 11 “[m]aximum standing/walking capacity”—it is reasonable to interpret “sit down and rest” to 12 mean only that claimant needs time to rest his feet, as opposed to rest from work. “Where 13 evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 14 must be upheld.” Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005). 15 It is relevant that the notes from Dr. Van Kirk’s evaluation support the ALJ’s finding that 16 claimant did not require time off-task. While repeatedly noting the pain that claimant reported 17 when walking and standing, Dr. Van Kirk noted that “[s]itting is not a problem.” AR 702. 18 Accordingly, Dr. Van Kirk found that claimant had no limitations when it came to his maximum 19 sitting capacity. AR 704. His notes include no findings that claimant would require time off task 20 after a period of standing or walking. See AR 701-04. 21 Because I afford deference to an ALJ’s rational interpretation of the medical evidence, 22 and the ALJ accounted for claimant’s need to rest by including a sit-stand option in his RFC, the 23 ALJ did not commit legal error. Claimant has failed to show a basis for remand. 24 IV. CONCLUSION AND ORDER 25 For the reasons stated in this opinion, the court concludes that the ALJ’s RFC findings are 26 supported by substantial evidence in the record and that the RFC adequately accounts for the [27] 5 Drs. Wright and Bullard endorsed Dr. Van Kirk’s finding without adding any additional 28 limitations regarding claimant’s need to rest. 1 | claimant’s limitations. The ALJ did not err.© The Commissioner has met his burden of 2 | establishing that he is entitled to judgment as a matter of law. The court hereby orders that: 3 1. claimant Job Robles’ motion for summary judgment, ECF No. 19, be denied; 4 2. the Commissioner’s cross-motion for summary judgment, ECF No. 22, be granted; 5 3. the decision of the Commissioner of Social Security affirmed; and 6 4. the clerk of this court enter judgment in favor of defendant Commissioner of Social 7 | Security and against claimant Job Robles, and close this case. [8] 9 IT IS SO ORDERED. 10 ( — Dated: _ September 20, 2021 Q_—_—. 11 JEREMY D. PETERSON 0 UNITED STATES MAGISTRATE JUDGE [23] 24 ® Claimant has submitted notice of new legal authority citing recent decisions of the Supreme Court and an opinion issued by the Department of Justice’s Office of Legal Counsel 25 (“OLC”). See ECF No. 23 at 1 (citing, inter alia, Collins v. Yellen, 141 S. Ct. 1761 (2021)). 26 | Claimant asserts that the OLC opinion “casts significant doubt onto the constitutionality of the appointment of the Commissioner of Social Security.” Jd. He does not develop this argument, 27 | however, and Iam unconvinced that the cited authorities impact the instant case. See Collins, 141 S. Ct. at 1802 (Kagan, J., concurring in part) (expressing doubt that the Supreme Court’s decision 28 | would require “the mass of SSA decisions . . . to be undone”).