“T]he ALJ did determine that Craft had a severe mental impairment and 23 considered whether it met or equaled a listed impairment, as required by the final step of 24 the special technique.”
How later courts described this case
- “T]he ALJ did determine that Craft had a severe mental impairment and 23 considered whether it met or equaled a listed impairment, as required by the final step of 24 the special technique.”
- “The RFC is used at step four to determine if a claimant 12 can do past relevant work and at step five to determine if a claimant can adjust to other 13 work.”
- noting that “even a pro se party’s objections to a Report and Recommendation must 18 be specific and clearly aimed at particular findings in the magistrate’s proposal, such that 19 no party be allowed a second bite at the apple by simply relitigating a prior argument”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 HEATHER K. CLARKE, Case No.: 19-cv-01669-AJB-RNB
12 Plaintiff,
ORDER:
13 v. (1) ADOPTING THE REPORT AND
RECOMMENDATION (Doc. No. 20),
14 ANDREW SAUL,
and
Commissioner of Social Security,
15
Defendant. (2) DENYING PLAINTIFF’S
16
SUMMARY JUDGMENT MOTION,
17 (Doc. No. 15)
18
19
20 Heather K. Clarke (“Plaintiff”) lodges three objections to the Magistrate Judge’s
21 Report and Recommendation regarding Plaintiff’s social security appeal. (Doc. No. 21.)
22 However, for all objections, Plaintiff fails to show that Andrew Saul’s (“Defendant” or
23 “Commissioner”) denial of disability benefits was not supported by substantial evidence
24 or made in legal error—a deferential standard by which this Court is bound. Although the
25 Court empathizes with Plaintiff’s symptoms, the Court ultimately finds the high bar for
26 remand has not been met. Accordingly, the Court ADOPTS the findings of the Report and
27 Recommendation and DENIES Plaintiff’s summary judgment motion. (Doc. Nos. 20, 15.)
28 //
1 I. BACKGROUND
2 Plaintiff seeks judicial review of the Commissioner’s denial of Plaintiff’s application
3 for disability insurance benefits. (Doc. No. 1.) On December 5, 2016, Plaintiff requested a
4 hearing before an Administrative Law Judge (“ALJ”). (Doc. No. 9-4 at 125-26.) The ALJ
5 determined that Plaintiff had “the following severe impairments: cervical degenerative disc
6 disease, depressive disorder, and anxiety disorder.” (Doc. No. 9-2 at 18.) Although the ALJ
7 found that Plaintiff was unable to perform her past relevant work, the ALJ determined that
8 Plaintiff could perform jobs in the national economy, including “occupations such as
9 document preparer . . . and garment sorter[.]” (Id. at 26.) Applying the five-step evaluation
10 process, the ALJ concluded that Plaintiff is not disabled and denied her disability insurance
11 benefits. (Id. at 27.) Plaintiff appealed the final administrative decision to this Court, and
12 the Court referred the matter to a Magistrate Judge for a Report and Recommendation
13 (“R&R”). The Magistrate Judge issued a R&R, recommending that judgment be entered
14 denying Plaintiff’s motion for summary judgment, affirming the Commissioner’s decision,
15 and dismissing this action with prejudice. Plaintiff timely objected to the R&R, and
16 Defendant replied.
17 II. LEGAL STANDARD
18 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
19 judge’s duties in connection with a magistrate judge’s report and recommendation. The
20 district judge must “make a de novo determination of those portions of the report . . . to
21 which objection is made,” and “may accept, reject, or modify, in whole or in part, the
22 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
23 see also United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989).
24 An unsuccessful applicant for social security disability benefits may seek judicial
25 review of a final agency decision. 42 U.S.C. § 405(g). However, “[f]or highly fact-intensive
26 individualized determinations like a claimant’s entitlement to disability benefits, Congress
27 ‘places a premium upon agency expertise, and, for the sake of uniformity, it is usually
28 better to minimize the opportunity for reviewing courts to substitute their discretion for
1 that of the agency.’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098
2 (9th Cir. 2014) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)).
3 Accordingly, a reviewing court must “follow three important rules in [its] analysis of the
4 ALJ’s decision.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
5 First, the Court “leave[s] it to the ALJ to determine credibility, resolve conflicts in
6 the testimony, and resolve ambiguities in the record.” Treichler, 775 F.3d at 1098. Second,
7 the Court must “disturb the Commissioner’s decision to deny benefits ‘only if it is not
8 supported by substantial evidence or is based on legal error.’” Id. (quoting Andrews v.
9 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see Orn v. Astrue, 495 F.3d 625, 630
10 (9th Cir. 2007). Third, “[e]ven when the ALJ commits legal error, we uphold the decision
11 where that error is harmless, ‘meaning that it is inconsequential to the ultimate
12 nondisability determination,’ or that, despite the legal error, the agency’s path may
13 reasonably be discerned, even if the agency explains its decision with less than ideal
14 clarity.” Treichler, 775 F.3d at 1098 (internal quotation marks and citations omitted.)
15 III. DISCUSSION
16 Plaintiff objects to the R&R on three grounds: (1) the R&R is inconsistent with
17 Plaintiff’s right to due process; (2) the R&R erred because it misunderstood the special
18 technique, which Plaintiff claims the ALJ failed to perform; and (3) the R&R erred in
19 affirming the ALJ’s decision to give little weight to Plaintiff’s psychiatrist’s opinion.
20 A. The Report and Recommendation Is Not Inconsistent with Due Process.
21 Plaintiff’s assertion that the R&R is inconsistent with her due process rights is
22 unavailing. (Doc. No. 21 at 4.). Plaintiff identifies no specific process of which was denied.
23 (Id.) In any event, the Court notes that “the fundamental requirement of due process is the
24 opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.
25 Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks and citations omitted). As
26 Plaintiff noted in her motion for summary judgment, she was afforded an opportunity to
27 have the initial denial of her social security benefits application reconsidered. (Doc. No.
28 15-1 at 5–6.) Plaintiff was also granted her request for a hearing before the ALJ. (Id.)
1 Subsequently, Plaintiff was able to avail herself of a civil action following the Appeals
2 Council’s denial of her request for review. (Id. at 6.) These procedures afforded Plaintiff a
3 meaningful opportunity to be heard at a meaningful time. See Mathews, 424 U.S. at 333
4 (“[S]ome form of hearing is required before an individual is finally deprived of a property
5 interest.”) Again, Plaintiff pointed to no particular process denied to her.
6 Plaintiff appears to imply that the R&R was based on “post hoc rationalizations” as
7 opposed to “the reasoning and factual findings offered by the ALJ.” (Doc. No. 21 at 4.)
8 The Federal Rules of Civil Procedure require that a party “file specific written objections
9 to the proposed findings and recommendations” and that “[t]he district judge must
10 determine de novo any part of the magistrate judge’s disposition that has been properly
11 objected to.” Fed. R. Civ. P. 72(b) (emphasis added). Other than generally asserting that
12 the R&R was based on post hoc rationalizations, Plaintiff provided no detail regarding this
13 argument and pointed to no specific findings by the Magistrate Judge in support of such
14 argument. Without more, the Court finds that Plaintiff’s vague assertion about the R&R
15 does not amount to a specific, proper objection for purposes of the Court’s review. See Fed.
16 R. Civ. P. 72(b); see also DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y.
17 2009) (noting that “even a pro se party’s objections to a Report and Recommendation must
18 be specific and clearly aimed at particular findings in the magistrate’s proposal, such that
19 no party be allowed a second bite at the apple by simply relitigating a prior argument”)
20 (citation and internal quotations omitted).
21 Accordingly, for the reasons stated, the Court OVERRULES Plaintiff’s due process
22 objection to the R&R.
23 B. The ALJ Correctly Applied the “Special Technique”.
24 Next, Plaintiff contends “[t]he Magistrate misunderstands the special technique.”
25 (Doc. No. 21 at 5.) Plaintiff asserts that the first part of the special technique starts at step
26 three of the five-step evaluation process, and that the second part of the special technique
27 is applied at step four of the five-step process. (Id. at 6.) Plaintiff further argues the “ALJ
28 did not provide a mental function residual capacity analysis” as part of the special
1 technique. (Id. at 5.)
2 First, the Court acknowledges that “[i]n addition to the five-step analysis outlined in
3 20 C.F.R. § 404.1520[a], the Commissioner has promulgated additional regulations
4 governing evaluations of the severity of mental impairments.” Kohler v. Astrue, 546 F.3d
5 260, 265 (2d Cir. 2008). Contrary to Plaintiff’s assertion, however, “[t]hese regulations
6 require application of a ‘special technique’ at the second and third steps of the five-step
7 framework[.]” Id. (emphasis added); see also Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d
8 721, 725 (9th Cir. 2011) (“The ALJ erred in steps two and three by failing to follow the
9 procedures proscribed in 20 C.F.R. § 404.1520a for determining whether Keyser has a
10 severe mental impairment and, if so, determining whether that impairment meets or equals
11 any of the listed impairments.”). Therefore, the Court finds that Plaintiff’s assertion that
12 the special technique occurs at steps three and four is without merit because the special
13 technique is applied at steps two and three.
14 To the extent that Plaintiff asserts that the ALJ improperly applied the special
15 technique in her case, the Court disagrees. Under the special technique, the ALJ must
16 determine whether the claimant has “a medically determinable mental impairment.” 20
17 C.F.R. § 404.1520a(b)(1). Then the ALJ must “rate the degree of functional limitation from
18 the impairment” using the four broad functional areas: understand, remember, or apply
19 information; interact with others; concentrate, persist or maintain pace; and adapt or
20 manage oneself. Id. § 404.1520a(b)(2), (c)(3). Subsequently, the ALJ “will determine the
21 severity of [claimant’s] mental impairment(s).” Id. § 404.1520a(d). If the impairment is
22 severe, the ALJ “will then determine if it meets or is equivalent in severity to a listed mental
23 disorder.” Id. § 404.1520a(d)(2).
24 In this case, the R&R correctly listed the applicable steps of the special technique
25 used by the ALJ, which entailed:
26 [D]etermining whether the claimant has any medically determinable mental
impairments; rating the degree of functional limitation resulting from the
27
mental impairment(s) in four broad functional areas; determining the severity
28 of the mental impairment(s); and then, if any of the mental impairments is
1 severe, proceeding to step three of the sequential evaluation process. The four
broad functional areas are: understand, remember, or apply information;
2
interact with others; concentrate, persist, or maintain pace; and adapt or
3 manage oneself. In rating the degree of limitation in these areas, the following
five-point scale is utilized: None, mild, moderate, marked, and extreme.
4
Under the Commissioner’s regulations, if the degrees of limitation are rated
5 as none or mild, the impairment generally is considered not severe, unless the
evidence otherwise indicates that there is more than a minimal limitation in
6
your ability to do basic work activities.
7
(Doc. No. 20 at 6-7 (internal quotations and citations omitted).) Here, the ALJ found at
8
step two that Plaintiff’s depression and anxiety disorders qualified as severe mental
9
impairments. (Doc. No. 9-2 at 18.) More importantly, as a central requirement of the special
10
technique, the ALJ made specific findings as to each of the functional areas and found
11
Plaintiff’s limitation to be moderate in all four areas. (Id. at 19–21.) And as the ALJ noted,
12
Plaintiff’s impairments did not result in at least one “extreme” limitation or two “marked”
13
limitations, and thus, did not satisfy the criteria for Listing 12.04, which encompasses
14
depressive disorders, and Listing 12.06, which encompasses anxiety disorders. (Id. at 20–
15
21.) The ALJ then proceeded to assess Plaintiff’s RFC. (Id. at 20.) Thus, the Court finds
16
that Plaintiff’s assertion that the special technique was improperly applied is also without
17
merit.
18
Second, Plaintiff misunderstands the evaluation process when she asserts that the
19
RFC assessment is required as part of the special technique. (Doc. No. 21 at 5.) The special
20
technique is completed after the determination of whether an impairment or combination
21
of impairments meet or equal a listed impairment. See Clark v. Astrue, 539 F.3d 668, 675
22
(7th Cir. 2008) (“T]he ALJ did determine that Craft had a severe mental impairment and
23
considered whether it met or equaled a listed impairment, as required by the final step of
24
the special technique.”) (emphasis added). Although some of the evidence may overlap,
25
the RFC analysis is a subsequent step after the special technique. § 404.1520a(d)(3) (“If
26
we find that you have a severe mental impairment(s) that neither meets nor is equivalent in
27
severity to any listing, we will then assess your residual functional capacity.”). Thus,
28
1 Plaintiff’s assertion that the ALJ needed to perform the RFC assessment as part of the
2 special technique is misguided.
3 Third, while Plaintiff argues that the ALJ did not conduct a mental RFC analysis,
4 (Doc. No. 21 at 5,) the record shows otherwise. In fact, the ALJ stated, “[b]efore
5 considering step four of the sequential evaluation process, the undersigned must first
6 determine the claimant’s [RFC].” (Doc. No. 9-2 at 17.) As such, the Court finds that
7 Plaintiff’s claim that the ALJ failed to evaluate her RFC is without merit because after
8 careful consideration of the entire record the ALJ conducted a thorough five-page analysis
9 (out of the 13-page decision) of Plaintiff’s RFC.” (Id. at 20-25.) The RFC determination is
10 then used at steps four and five of the five-step evaluation process. See Garrison v. Colvin,
11 759 F.3d 995, 1011 (9th Cir. 2014) (“The RFC is used at step four to determine if a claimant
12 can do past relevant work and at step five to determine if a claimant can adjust to other
13 work.”)
14 In assessing the RFC, the ALJ “first assess[es] the nature and extent of [claimant’s]
15 mental limitations and restrictions and then determine [claimant’s] residual functional
16 capacity for work activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(c). If
17 the ALJ did not find an impairment or combination of impairments that meets or medically
18 equals the severity to a listed mental disorder, then the ALJ “will consider the limiting
19 effects of all [claimant’s] impairment(s), even those that are not severe, in determining [the
20 claimant’s] residual functional capacity.” 20 C.F.R. § 404.1545(e).
21 As evidenced in the ALJ’s decision, the ALJ properly evaluated Plaintiff’s mental
22 RFC. (Doc. No. 9-2 at 20-25.) The ALJ considered Plaintiff’s testimony and “all symptoms
23 and the extent to which these symptoms can be reasonably accepted as consistent with the
24 objective medical evidence and other evidence[.]” (Id.) Plaintiff testified that her difficulty
25 concentrating, focusing, and remembering affects her personal relationships and that her
26 physical pain and limitations prevent her to perform sedentary work. (Id. at 21-22.)
27 However, Plaintiff also testified she is able to read, drive, shop in stores and online, care
28 for herself and her daughter, and that she is able to spend time with family and friends. (Id.
1 at 19, 23-24.) Also, the medical evidence showed primarily that Plaintiff “was generally
2 described as pleasant and cooperative” with intact “attention and concentration.” (Id. at
3 19-20.) Moreover, in the ALJ’s RFC analysis, he considered the Plaintiff’s testimony and
4 explained the weight given to each expert opinion. (Id. at 23-25.) The ALJ ultimately
5 concluded that Plaintiff has the RFC “to perform light work.” (Id. at 20.) Thus, considering
6 the steps conducted by the ALJ, there is substantial evidence supporting the ALJ’s
7 determination of Plaintiff’s mental RFC.
8 For the reasons stated above, the Court OVERRULES Plaintiff’s objection and
9 ADOPTS the R&R’s findings and conclusion that reversal is not warranted due to the
10 ALJ’s alleged failure to follow the special technique.
11 C. The ALJ Accorded Proper Weight to the Treating Psychiatrist’s Opinion.
12 Finally, Plaintiff argues the R&R was mistaken because it concluded “the ALJ was
13 correct in giving little weight to [Plaintiff’s] psychiatrist[.]” (Doc. No. 21 at 6.) “To reject
14 an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and
15 convincing reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427
16 F.3d 1211, 1216 (9th Cir. 2005). Plaintiff’s contention that the R&R was mistaken is
17 unpersuasive for a couple of reasons. First, contrary to Plaintiff’s assertion, the ALJ did
18 not completely reject Dr. Heidenfelder’s (“Psychiatrist”) notes and opinions. Psychiatrist’s
19 last assessment in the record, dated June 1, 2016, stated that “patient [is] being treated for
20 depn/anxiety. Persistent mild-moderate depn and anxiety with intermittent flare-ups[.]”
21 (Doc. No. 9-7 at 344.) Based on the medical record, which included this June 1, 2016
22 report, the ALJ considered concluded that Plaintiff has severe depressive and anxiety
23 disorders. (Doc. No. 9-2 at 18.)
24 Second, the ALJ did not err in assigning no weight to Psychiatrist’s July 23, 2018
25 letter, (Doc. No. 9-8 at 603), because it was not a medical opinion requiring evaluation for
26 purposes of his RFC analysis. (Doc. No. 20 at 5-6.) As the Magistrate Judge noted, the
27 2018 letter is a one-page document generally addressed “To Whom It May Concern” and
28 contained a brief statement that Psychiatrist was treating Plaintiff for “Major Depression
1 Generalized Anxiety Disorder.” (Doc. No. 9-8 at 603.) As such, the letter simply
2 advised the ALJ of the mental impartments for which he is treating Plaintiff and provided
3 ||no detail about how her condition affects her daily living. See Thomas v. Barnhart, 278
4 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any physician,
5 ||including a treating physician, if that opinion is brief, conclusory, and inadequately
6 supported by clinical findings.”). Thus, that the ALJ did not err in finding that the letter
7 ||had no probative value with respect to his RFC evaluation. The Court finds the ALJ’s
8 || decision to assign no weight to the 2018 letter is supported by substantial evidence, and the
9 ||R&R did not err in affirming the ALJ’s decision.
10 For the foregoing reasons, the Court OVERRULES Plaintiff's objection and
11 |} ADOPTS the Magistrate Judge’s conclusion that reversal is not warranted based on an
12 || alleged failure to accord proper weight to Psychiatrist’s 2018 letter.
13 IV. CONCLUSION
14 After careful review of Plaintiff's objections to the R&R, the Court finds that she
15 ||has not shown that the Commissioner’s findings in denying her application for disability
16 || benefits were unsupported by substantial evidence or based on legal error. Moreover, the
17 || Court finds that the Magistrate Judge’s findings were thorough, well-reasoned, and contain
18 clear error. Thus, the Court OVERRULES Plaintiff's objections, (Doc. No. 21),
19 || ADOPTS the Report and Recommendation in its entirety, (Doc. No. 20), and DENIES
20 || Plaintiffs summary judgment motion, (Doc. No. 15). The Court ORDERS the Court Clerk
21 enter judgment affirming the Commissioner’s decision and dismissing this action with
22 || prejudice.
23 IT IS SO ORDERED.
24 || Dated: November 6, 2020 | ZS iz : LE
25 Hon, Anthony J.Battaglia
26 United States District Judge
27
28