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Baker v. Commissioner of Social Security Administration

United States District Court, D. Arizona

May 7, 2018

Ramona Baker, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          David G. Campbell, United States District Judge.

         Plaintiff Ramona Baker, now substituted by her husband, Andrew Baker, seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act. Because the ALJ's decision contains reversible error, the Court will remand for further proceedings.

         I. Background.

         Plaintiff was 49 years old at the time of her death on March 29, 2017. Doc. 15-1. Plaintiff previously worked as a collections clerk, babysitter, and server. A.R. 215. On April 24, 2012, Plaintiff applied for disability benefits, alleging disability beginning October 15, 2011. A.R. 184. On March 13, 2015, Plaintiff appeared and testified at a hearing before the ALJ. A.R. 36-78. A vocational expert also testified. Id. On August 10, 2015, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 13-25. This became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on November 15, 2016. A.R. 1-5.

         II. Legal Standard.

         The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the Court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. (internal citations and quotation marks omitted). As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Id.

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the Court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

         III. The ALJ's Five-Step Evaluation Process.

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the claimant must show that (1) she is not currently working, (2) she has a severe impairment, and (3) this impairment meets or equals a listed impairment or (4) her residual functional capacity (“RFC”) prevents her performance of any past relevant work. If the claimant meets her burden through step three, the Commissioner must find her disabled. If the inquiry proceeds to step four and the claimant shows that she is incapable of performing past relevant work, the Commissioner must show in the fifth step that the claimant is capable of other work suitable for her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).

         At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2016, and that she had not engaged in substantial gainful activity since October 15, 2011. A.R. 15. At step two, the ALJ found that Plaintiff had the following severe impairments: “obesity, recurrent deep vein thrombosis (DVT) and pulmonary embolisms (PE), status post filter placement, left knee arthrosis, hypertension/coronary artery disease, status post pacemaker, generalized anxiety disorder, depressive disorder with anxious features not otherwise specified, and unspecified neurocognitive disorder.” Id. The ALJ also noted the following medically determinable but non-severe impairments: “headaches, hypothyroid, chronic obstructive pulmonary disease (COPD)/asthma/acute bronchitis with a history of tobacco abuse, upper respiratory infection, acute diverticulosis, lower spine spondylosis, thoracic scoliosis, left mastoiditis, otitis media, left ankle fracture, and nephrolithiasis without obstruction.” A.R. 16. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals a listed impairment. Id. At step four, the ALJ found that Plaintiff had the RFC to perform less than the full range of light work, and was unable to perform any past relevant work. A.R. 18-23. At step five, the ALJ found that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. A.R. 23-24.

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective because it is based on legal error and is not supported by substantial evidence. Doc. 15. Specifically, Plaintiff argues that the ALJ's mental and physical RFC assessments are not supported by substantial evidence, and that the ALJ erred in discrediting the physical symptom testimony of Plaintiff and her husband, Anthony Baker. Id.

         A. Mental RFC.

         In making the mental RFC determination, the ALJ relied on the opinions of two examining psychologists, Drs. Michael Rabara and Greg Peetoom. A.R. 22-23. He assigned the opinions great weight, and noted that they were “complete, ” “well-supported by objective” techniques, and “largely consistent with the record as a whole.” A.R. 23. Plaintiff asserts that the ALJ's mental RFC determination and ultimate finding of nondisability are inconsistent with these opinions, and that the ALJ gave no reason for rejecting any part of either opinion. Doc. 15 at 10-12.

         1. Dr. Rabara.

         Dr. Rabara performed a psychological assessment of Plaintiff on January 29, 2014, and diagnosed her with unspecified depressive disorder with anxious features and unspecified neurocognitive disorder. A.R. 2057-63. He opined that Plaintiff had “moderate difficulty carrying out detailed instructions, sustaining her concentration, performing activities within a schedule[, ] sustaining an ordinary routine, and completing a normal work day at a consistent pace.” A.R. 2063. Plaintiff cites the following testimony from the hearing and argues that Dr. Rabara's opinion establishes disability:

[Plaintiff's Counsel]: And if a person were to have difficulty sustaining an ordinary routine and completing a normal work day at a consistent pace, would that person be able to maintain work?
[Vocational Expert]: No.

A.R. 77.

         Defendant responds that the hypothetical posed by Plaintiff's Counsel “is not a complete statement of Dr. Rabara's opinion” because Dr. Rabara opined to “moderate difficulty, ” while the hypothetical simply assumed “difficulty.” Doc. 25 at 7 (citing SSA Program Operations Manual System (POMS) DI 24510.065(B)(1)(c), available at But the POMS section cited by Defendant instructs agency medical consultants not to include nonspecific qualifying terms such as “moderate” in the RFC narrative because “[s]uch terms do not describe function and do not usefully convey the extent of capacity limitation.” POMS DI 24510.065(B)(1)(c). The POMS section does not regulate the terms that can be used in hypotheticals posed to vocational experts. The hypothetical above fairly restates Dr. Rabara's opinion and avoids use of the term “moderate.”

         Defendant next argues that the hypothetical took one sentence of Dr. Rabara's opinion out of context, and that the ALJ's RFC determination adequately incorporated the overall findings of the opinion. Doc. 25 at 5-6. The relevant portion of the RFC assessment states that Plaintiff is “limited to understanding, remembering and carrying out simple instructions and performing simple routine repetitive tasks; and she can only have superficial interaction with co-workers and no direct public contact.” A.R. 18. Defendant asserts that even where an ALJ assigns an opinion great weight, he need not incorporate the opinion verbatim into the RFC. Doc. 25 at 5-6 (citing Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.”); Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010)).

         In Rounds, the court held that the ALJ had adequately incorporated the opinions of two doctors where the ALJ relied on the portions of the opinions containing “specific imperatives” and narratives rather than the “treatment recommendations” or “checkbox” general conclusions. 807 F.3d at 1005-06. The court explained that “the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.” Id. at 1006. Specifically, one doctor opined that the claimant had “moderate limitations in her ability to accept instructions and respond appropriately to criticisms from supervisors.” Id. at 1005. The ALJ translated this to the plaintiff being limited to “one to two step tasks with no public contact, no teamwork and limited coworker contact.” Id. at 1006. Similarly, in Turner, the claimant's treating doctor opined that the claimant had “marked limitations in social functioning.” 613 F.3d at 1223. The court held that the ALJ had sufficiently incorporated this general observation by limiting the claimant to jobs with no public contact and where it would be recognized that he works best alone. Id.

         Thus the ALJ in this case was not required to incorporate each sentence of Dr. Rabara's opinion verbatim into the RFC. Rather, he was required to translate Dr. Rabara's clinical findings into a concise RFC (or explain his reasons for rejecting certain findings). But unlike the ALJs in Rounds and Turner who rephrased the general clinical findings into concrete functional limitations, the ALJ here simply ignored Dr. Rabara's conclusions regarding certain functional capacities. The RFC is silent on Dr. Rabara's opinion that Plaintiff has limited ability to sustain concentration, follow a schedule or routine, and maintain a consistent pace. See A.R. 2062. The RFC cannot be characterized as a fair translation because it does not mention any limitation in these categories. See Brink v. Comm'r Soc. Sec. Admin., 343 Fed.Appx. 211, 212 (9th Cir. 2009) (“The Commissioner's contention that the phrase ‘simple, repetitive work' encompasses difficulties with concentration, persistence, or pace is not persuasive.”); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“[A]n ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony.”). Moreover, Dr. Peetoom, whose opinion was also afforded great weight, similarly opined that Plaintiff was limited in concentration and pace, as explained below. See A.R. 876.

         2. Dr. Peetoom.

         Dr. Peetoom evaluated Plaintiff on November 7, 2012, and diagnosed her with generalized anxiety disorder. A.R. 871-76. He opined that in many respects Plaintiff was oriented and “able to essentially function independently, ” but found that she may require “instructions to be repeated due to off task behavior” and “additional supervisory intervention” to stay focused on job-related tasks “due to preoccupation with medical issues.” A.R. 876. He noted that Plaintiff scored 29 out of 30 on the mini-mental state examination. A.R. 873. He also noted that during the evaluation Plaintiff was frequently focused on medical issues rather than the questions he asked, and that hypochondriasis was a “potential diagnosis, ...

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