Lisa D. v. Kijakazi
| Docket Number | 22cv695-DMS(MSB) |
| Decision Date | 25 August 2023 |
| Parties | LISA D.,[1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,[2] Defendant. |
| Court | U.S. District Court — Southern District of California |
REPORT AND RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL REVIEW [ECF NO. 19]
This Report and Recommendation is submitted to the Honorable Dana M. Sabraw, United States District Chief Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SOUTHERN DISTRICT OF CALIFORNIA for the Southern District of California. On May 16, 2022, Plaintiff Lisa D. filed a Complaint pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a decision by the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income. (See Compl., ECF No 1.)
Now pending before the Court is the parties' “Joint Motion for Judicial Review of the Final Decision of the Acting Commissioner of Social Security” (“Joint Motion”). (ECF No. 19 ( ).) The Court has carefully reviewed the parties' Joint Motion and the Administrative Record (“AR”) [ECF No 10], and for the reasons set forth below RECOMMENDS that the Commissioner's decision be REVERSED and this matter be REMANDED for further administrative proceedings consistent with this Report and Recommendation.
On September 6, 2019, Plaintiff filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging disability beginning on March 23, 2018. (AR 274-89.)[3]Her applications were denied initially on February 26, 2020, and upon reconsideration on July 13, 2020. (AR 155-56, 187-88). On August 27, 2020, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (AR 208.) On June 4, 2021, ALJ Kevin Messer held a telephonic administrative hearing, during which Plaintiff was represented by counsel. (AR 35-63.) Both Plaintiff and an impartial vocational expert, Shirley Ripp, testified. (Id.) In a written decision dated June 25, 2021, the ALJ denied Plaintiff's application, concluding that Plaintiff had not been under a disability from March 23, 2018, through the date of the decision. (AR 12-34.)
On August 31, 2021, the Appeals Council received a request for review of the ALJ's decision. (AR 7-11.) The Appeals Council denied the request on March 14, 2022, resulting in the ALJ's decision becoming the final decision of the Commissioner. (AR 16.) On May 16, 2022, Plaintiff filed the instant civil action. (ECF No. 1.) Pursuant to the Court's briefing schedule, the parties timely filed their Joint Motion for Judicial Review on March 2, 2023. (ECF No. 19.)
In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALI found Plaintiff had not engaged in substantial gainful activity since March 23, 2018, the alleged onset date. (AR 18.) At step two, the ALI found Plaintiff had the following severe impairments that significantly limit her ability to perform basic work activities:
lupus, ulcerative colitis, peripheral neuropathy, degenerative disc disease of the cervical spine, fibromyalgia, rheumatoid arthritis, chronic pain syndrome, adhesive capsulitis of left shoulder, depression, generalized anxiety disorder, and attention deficit hyperactive disorder.
(Id.) The ALI also noted Plaintiff's alleged impairments of “obesity, TMJ disorder, fatty liver, chondromalacia patella of left knee, degenerative joint disease of right foot, and Bells' [sic] palsy,” but found they were non-severe because they “have not resulted in any significant limitation in [her] ability to do basic work activities.” (AR 18-19.)
At step three, the ALI found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (AR 19.) Specifically, the ALI considered the following listed impairments: 1.15 disorders of the skeletal spine resulting in compromise of a nerve root(s); 1.16 lumbar spinal stenosis resulting in compromise of the cauda equina; 1.18 abnormality of a major joint(s) in any extremity; and 5.05 chronic liver disease. (Id.; 20 C.F.R. pt. 404, app. 1.) The ALJ also determined that Plaintiff's mental impairments, considered individually and together, did not meet the criteria of listings 12.04 depressive, bipolar and related disorders; and 12.06 anxiety and obsessive-compulsive disorders. (AR 20; 20 C.F.R. pt. 404, Part 404, Subpart P, Appendix 1.)
Based on his evaluation of the medical and opinion evidence in the record, the ALI determined Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work, subject to the following limitations:
[Plaintiff] has the residual functional capacity to perform sedentary work . . . except she is unable to climb ladders, ropes or scaffolds. She is unable to crawl. She is able to occasionally climb ramps and stairs. She is able to occasionally balance, stoop, kneel and crouch. She is able to frequently reach overhead with bilateral upper extremities. She must avoid concentrated exposure to fumes, odors, gases and other pulmonary irritants. She is able to understand, remember, and carry out simple, routine tasks. She is able to have occasional interaction with the general public and only occasional work-related, non-personal, non-social interaction with co-workers and supervisors. She is limited to jobs requiring only simple work-related decisions. However, she is able to keep pace sufficient to complete tasks and meet quotas typically found in unskilled work.
(AR 21-22.)
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (AR 22.) However, the ALJ determined that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Id.) The ALJ said “[t]he longitudinal record does not support a finding that claimant's impairments are so severe as to be disabling,” emphasizing that her “symptoms are stable” and she “received only minimal, conservative treatment.” (Id.) Based on the foregoing, the ALJ concluded a sedentary exertional level was appropriate, emphasizing that “the objective medical evidence . . . establishes that the claimant has a greater sustained capacity than the claimant alleges.” (AR 27.)
At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as an automobile salesperson. (AR 27.) Finally, the ALJ proceeded to step five of the sequential evaluation process. The ALJ noted the vocational expert's testimony that a hypothetical individual with Plaintiff's vocational profile and RFC could perform the requirements of other occupations that exist in significant numbers in the national economy, such as document preparer, addressing clerk, and escort vehicle driver. (AR 28.) These occupations require the ability to perform sedentary, unskilled work. (Id.) Thus, the ALJ concluded Plaintiff had not been under a disability as defined by the Social Security Act from March 23, 2018, through the date of the decision, and denied her applications for disability insurance benefits and supplemental security income. (AR 29.)
The parties have briefed five issues in their Joint Motion, which Plaintiff asserts are grounds for reversal:
(J. Mot. at 2.)
Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of the Commissioner's final decision. See 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will only be disturbed if it is not supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art' used throughout administrative law to describe how courts are to review agency factfinding.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting T-Mobile South, LLC v. Roswell, 135 S.Ct. 808, 815 (2015)). The Supreme Court has said substantial evidence means “more than a mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Ninth Circuit explains that substantial evidence is “more than a mere scintilla but less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
Where the evidence is susceptible to more than one rational interpretation, the ALI's decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This includes deferring to the ALJ's credibility...
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