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Kanik v. Berryhill

United States District Court, D. Arizona

August 17, 2018

Jane Marie Kanik, Plaintiff,
v.
Nancy A. Berryhill, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          H. Russel Holland United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Jane Marie Kanik has timely filed her opening brief, [1] to which defendant Nancy A. Berryhill has timely responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On December 23, 2013, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that she became disabled on May 28, 2010. Plaintiff alleges that she is disabled due to moderate to severe hearing loss, developmental cognitive disorder, anxiety, depression, and arthritis in the right hip. Plaintiff's application was denied initially and on reconsideration. After a hearing on February 19, 2015, an administrative law judge (ALJ) denied plaintiff's claim. On November 27, 2017, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's March 23, 2016 decision the final decision of defendant. On January 16, 2018, plaintiff commenced this action in which she asks the court to find that she is entitled to disability benefits.

         General Background

         Plaintiff was born on May 9, 1957. She was 58 years old at the time of the administrative hearing. Plaintiff has an associates degree in applied business. Plaintiff's past relevant work includes work as a payroll bookkeeping clerk, telephone solicitor, and teacher's aide.

         The ALJ's Decision

         The ALJ first determined that plaintiff “last met the insured status requirements of the Social Security Act on December 31, 2015.”[3] The date was extended by the Appeals Council to “at least March 31, 2017. . . .”[4]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[5]

         At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity during the period from her alleged onset date of May 28, 2010 through her date last insured . . . .”[6]

         At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the following severe impairments: hearing loss, a cognitive disorder, and an affective disorder NOS. . . .”[7] The ALJ found that plaintiff's “degenerative joint disease of the right hip is not a severe impairment.”[8] The ALJ also “fully considered obesity in the context of the overall record of evidence . . . and determined that it is not a severe impairment.”[9]

         At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .”[10]The ALJ considered Listings 2.10 (Hearing loss not treated with cochlear implantation), 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders). The ALJ considered the “paragraph B” criteria and found that plaintiff had mild impairment in her activities of daily living; moderate limitations in social functioning; moderate limitations in concentration, persistence, and pace; and no episodes of decompensation that have been of extended duration.[11] The ALJ also found that plaintiff did not meet the “paragraph C” criteria.[12]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had “the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: she is limited to work that is not fast-paced. The claimant can respond appropriately to supervision and coworkers, and may have frequent contact with the public.”[13]

         The ALJ gave great weight to Dr. Nockleby's opinion.[14] The ALJ gave little weight[15]to Dr. McBride's opinion[16] and Dr. Penner's opinion.[17] The ALJ gave little weight to Dr. Mather's opinion that plaintiff had no impairments that would last more than 12 continuous months but gave great weight[18] to the rest of his opinion.[19] The ALJ gave little weight to plaintiff's GAF scores.[20] The ALJ gave little weight to the lay testimony of plaintiff's sister, Susan Davis.[21]

         The ALJ found plaintiff's pain and symptom statements less than credible because of inconsistencies between her statements, her daily activities and the medical evidence.[22]

         At step four, the ALJ found that “[t]hrough the date last insured, the claimant was capable of performing past relevant work as a bookkeeping clerk and as a teacher's aide.”[23]The ALJ rejected plaintiff's argument that her past relevant employment had been “sheltered” employment.[24]

         Although not required to make step five findings, the ALJ made such findings. At step five, the ALJ found that “there are other jobs that exist in significant numbers in the national economy that the claimant also can perform.”[25] This finding was based on the Medical-Vocational Guidelines.[26]

         The ALJ concluded that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from May 28, 2010, the alleged onset date, through December 31, 2015, the date last insured. . . .”[27]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred at step two by not finding her right hip impairment to be a severe impairment. “[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual's ability to work.'” Id. (quoting SSR 85-28).

         The ALJ acknowledged that plaintiff's September 2013 x-rays showed severe degenerative changes to her right hip, [28] but he also noted that in May 2014, she had a normal gait and her mobility did not appear to be impaired by pain[29] and that in 2016, she “was described as having a normal gait, with the capability of undergoing exercise testing, participating in exercise programs, and using a treadmill.”[30]

         But, as plaintiff points out, she never claimed that her hip pain caused an antalgic gait. Rather, she claimed that her hip pain limited her ability to sit, stand, and walk for extended periods. Thus, whether she had a normal gait is largely irrelevant. Moreover, at times her gait was not normal.[31] As for her ability to use the treadmill, she was only able to “ambulate” on the treadmill when taking the stress test for five minutes[32] and it is reasonable to assume that this was due to the pain in her right hip.

         There was substantial evidence in the record that plaintiff's right hip impairment was more than a slight abnormality. The ALJ erred in not including plaintiff's right hip impairment as a severe impairment at step two.

         Defendant argues that this error was harmless. Error is harmless if it is “inconsequential to the ultimate nondisability determination.” Stout, 454 F.3d at 1055. Defendant argues that any failure of the ALJ at step two as to plaintiff's right hip impairment would not have affected the ultimate disability determination. This argument is based on the ALJ's step four findings. At step four, the ALJ found that plaintiff could perform her past relevant work as a bookkeeping clerk, which is a sedentary job.[33] Plaintiff testified that her right hip limits her in standing and sitting but that she could work at a job that would allow her to sit most of the day with the option to get up and move around[34] and the vocational expert testified that plaintiff's past relevant work as a bookkeeping clerk might allow a sit/stand option.[35] Thus, defendant argues that even if the ALJ had included plaintiff's right hip impairment as a severe impairment, the ALJ would still have found that plaintiff was not disabled because she could still work as a bookkeeping clerk.

         The problem with defendant's argument is that the vocational expert did not testify that there would be bookkeeping jobs available that would allow a sit/stand option, only that there might be such jobs available and that such a job might require an accommodation from the employer.[36] If the ALJ had considered plaintiff's right hip impairment a severe impairment, it is possible that he might have included a sit/stand option in her RFC or other limitations related to her right hip impairment. If such limitations had been included, it is possible that the ALJ would have found plaintiff disabled. The ALJ's step two error was not harmless.

         Plaintiff next argues that the ALJ erred by not including any hearing limitations in her RFC. Plaintiff argues that it was error for the ALJ to find that she had a severe hearing loss at step two but then fail to include any hearing limitations in her RFC, particularly since the ALJ found that “[w]hile addressed through the use of hearing aids, the claimant still has a measurable loss of hearing function which may tend to interfere with her ability to work.”[37]Plaintiff argues that the ALJ was required to explain why he did not include any limitations related to an impairment he found severe. Plaintiff acknowledges that the ALJ made reference to Dr. Bartell's[38] finding that plaintiff “could communicate adequately using hearing aids and had speech discrimination scores of 88 percent in the right ear and 40 percent in the left ear.”[39] The ALJ explained that Dr. Bartell's finding “supports the limitation in the claimant's residual functional capacity that she have only frequent contact with the general public and that she cannot perform fast-paced work.”[40] Plaintiff argues, however, that the ALJ did not explain how her hearing loss was accommodated by these limitations.

         “In making his RFC determination, [an] ALJ [must take] into account those limitations for which there was record support that did not depend on [a claimant's] subjective complaints.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Given that the ALJ found that plaintiff “has a measurable loss of hearing function which may tend to interfere with her ability to work[, ]”[41] the ALJ either should have included hearing limitations in plaintiff's RFC or explained why he was not including any hearing limitations in her RFC. The ALJ's attempted explanation was not adequate. It is not at all clear how excluding fast-paced work and constant contact with the public accommodates plaintiff's hearing loss.

         Plaintiff next argues that the ALJ erred by failing to include in her RFC limitations that were consistent with Dr. Nockleby's opinion. The ALJ gave great weight to Dr. Nockleby's opinion, but then, according to plaintiff, failed to include all the limitations that Dr. Nockleby assessed.

         Donald M. Nockleby, Ph.D., did a neuropsychological evaluation on January 6, 2012 to assist with vocational planning. Based on his examination and testing, Dr. Nockleby offered the following opinion:

1. The client has used Vocational Rehabilitation services in the past, and can continue to benefit from them. Without VR support, she will struggle in obtaining employment. The problems that she has had historically (decreased coping skills, slower than average productivity speed) are likely to increase as she ages, with normal development changes associated with age, with consequences for employability.
2. Her strengths include a warm and friendly manner, which could be effective in casual public interaction. She would be a pleasant co-worker.
3. She has had some success with jobs involving high structure, although her pace of performance and potential for increased errors could interfere with maintaining a job, where high productivity and error-free performance are important. She has been modestly successful with bookkeeping jobs, and evidently was sufficiently conscientious in these tasks that she performed OK.
She does best with ‘one task to do at a time' and would have difficulty, or could not, multi-task. Cognitive inflexibility, difficulty simultaneously monitoring several things at a time, difficulty quickly switching from a task she is engrossed in to take care of another task, are elements of her cognitive style that put limitations on the kinds of work she can do.
The non-verbal learning/cognitive disorder implies that she needs to be taught explicitly what the work task is, and generally cannot ‘read between the lines', cannot readily discern what to do on her own, cannot organize and prioritize work tasks. She is unlikely to go outside of the tasks that she is assigned, to spontaneously help on things that need to be done and lacks [the] flexibility expected of many workers.
4. She will benefit from job development and job coaching services. It will be very difficult to obtain work on her own and maintain the job without transitional services from RSA. Job Coaching could be phased out, after she masters the job, but an employer needs to understand her limitations and not place her in a position beyond her capabilities.
It is likely that, once placed in a job, she will require more time than average to learn new job sequences, and will need above average supervisory time as she learns a new position.
The jobs that she may be placed in could be those that she has had some success with in the past. Avoid work with high productivity demands and that could be considered high stress jobs. Work with a supportive employer would be desirable. She might need upgrading of bookkeeping skills if placed in that kind of work, but would need a low-pressure job. Data-entry could be considered, but it is likely that she would have some difficulty meeting productivity standards. She might function as a floor clerk in some department store settings where she had . . . routine and limited tasks to do, although it might be difficult for her ‘see' what needs to be done and initiate it. She could function as a ‘greeter' in a store. She may function well in a low-production job, such as a library aide at a front-desk or filing books. She would likely do well as a file clerk in a medical clinic or in an office setting. She could perform routine telephone work that is fairly scripted, such as reminding patients of appointments.
5. If she cannot be placed in a job with her current skills, given she has been out of work for an extended time, she may need to go through Work Adjustment Training, with a job targeted after that point.
6. Although she needs the health coverage that would come with full time employment, she may do best starting at part-time and increasing hours to her tolerance.
7. Her emotional coping difficulties appear to be addressed effectively with her current medication and counseling. Feedback and instruction in ‘pragmatics' of communications could be helpful.[42]

         The ALJ noted that it was Dr. Nockleby's opinion that plaintiff “does best when given one task to complete at a time and would have difficulty, or could not, multi-task” and that she “should avoid high productivity demands and high-stress job placements.”[43] The ALJ further noted that Dr. Nockleby “suggested that [plaintiff] ‘will need to work at an entry-level position that is structured and routine, low in stress, does not require multi-tasking, and has low production requirements.'”[44] The ALJ explained that he was incorporating these limitations into plaintiff's RFC by limiting her to “work that is not fast-paced and which does not feature constant contact with the general public.”[45]

         Plaintiff argues, however, that Dr. Nockleby's opinion supports additional limitations and work accommodations. In her opening brief, plaintiff seemed to suggest that the ALJ should have limited her to unskilled work based on Dr. Nockleby's opinion. But, as defendant is quick to point, Dr. Nockleby opined that “[t]he jobs that she may be placed in could be those that she has had some success with in the past[, ]”[46] which include bookkeeping jobs, which are not unskilled jobs.

         In her reply brief, plaintiff identifies additional limitations that she argues the ALJ should have included in her RFC based on Dr. Nockleby's opinion. She contends that the ALJ failed to include any limitations related to her limited coping skills, her slower than average production speeds, her inability to deal with work-related stress, her inability to multi-task and switch between tasks, her need for a supportive employer, and her need for limited working hours. Plaintiff insists that these are all limitations assessed by Dr. Nockleby and that the ALJ should have either included these limitations in her RFC or explained why he did not include them.

         The ALJ erred as to Dr. Nockleby's opinion. The ALJ gave Dr. Nockleby's opinion great weight but did not include many of the limitations assessed by Dr. Nockleby or explain why particular limitations were not included.

         Plaintiff next argues that the ALJ erred in finding her pain and symptom statements less than credible. “An ALJ engages in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “‘First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'“ Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the claimant is not required to show ‘that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it could reasonably have caused some degree of the symptom.'” Id. (quoting Smolen, 80 F.3d at 1282)). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Id. at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant's testimony, the ALJ may use ‘ordinary techniques of credibility evaluation.'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Turner v. Comm'r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.]” Id. (internal citations omitted).

         The ALJ found plaintiff's pain and symptom statements less than credible because of inconsistencies between her statements, her daily activities and the medical evidence.[47]While these are proper reasons for an ALJ to find a claimant's statements less than credible, the ALJ erred as to plaintiff's credibility because he did not explain this finding. “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). After stating that he found plaintiff's statements less than credible because they were inconsistent with her daily activities and the medical evidence, the ALJ proceeded to compare statements made by plaintiff's sister, Ms. Davis, with other evidence in the record. The ALJ did not cite to any statements made by plaintiff that the ALJ found to be inconsistent with her daily activities and the medical evidence. Thus, the ALJ erred as to plaintiff's credibility.

         Defendant's arguments to the contrary are unavailing. First, defendant argues that the ALJ properly found that plaintiff's statements were inconsistent with the medical evidence. For example, defendant contends that plaintiff's statements as to her hearing loss[48] were inconsistent with her objective test results.[49] Also by way of example, defendant cites to the testing done by Dr. Nockleby which showed that plaintiff had average verbal comprehension skills, average IQ, and average working memory index[50] and the testing done by Dr. Mather which showed that her cognitive functioning, linear and logical thought processes, memory, attention, and concentration were intact or within normal limits.[51] Defendant contends that plaintiff's statements about her cognitive difficulties were inconsistent with these objective test findings.

         The problem with defendant's argument is that the ALJ did not set out any of these inconsistencies. All the ALJ did was make a conclusory, unexplained finding that plaintiff's statements were inconsistent with the medical evidence. Such a general finding is not sufficient.

         Defendant next argues that the ALJ properly found that plaintiff's statements were inconsistent with her daily activities and points out that the ALJ noted that plaintiff could take care of her personal needs, shop, do errands, and do housework.[52] But the ALJ did not explain how plaintiff's ability to do these daily activities was inconsistent with her pain and symptom statements.

         Defendant also argues that the ALJ properly discredited plaintiff's statements because treatment for her hearing loss was effective. A favorable response to treatment may be a reason to find a claimant's pain and symptom statements less than credible. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). But, this was not a reason that was given by the ALJ. “Long-standing principles of administrative law require [the court] to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray, 554 F.3d at 1225. The court may only review “the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

         Defendant next argues that the ALJ properly discounted plaintiff's statements because they were inconsistent with the opinions of Dr. Mather and Dr. Nockleby. An ALJ may discount a claimant's symptom testimony that is “unsupported by . . . any persuasive reports of his doctors[.]” Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). However, this was not a ...


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