Moffett v. Kijakazi

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 GWEN M., Case No.: 23-cv-1562-KSC

12 Plaintiff,

ORDER REVIEWING FINAL

13 v. DECISION OF THE

COMMISSIONER OF SOCIAL

14 MARTIN O’MALLEY, Commissioner of

SECURITY

Social Security,

15

Defendant.

16

17

Plaintiff filed this action challenging the final decision of the Commissioner of

18

Social Security denying plaintiff’s claim for benefits. Doc. No. 1. Having reviewed the

19

briefing and the Administrative Record (“AR”), the Court issues the following decision.

20

I. BACKGROUND

21

Plaintiff applied for Disability Insurance Benefits on October 21, 2020. AR 264-65.1

22

The Social Security Administration denied the claim on April 29, 2021. AR 145. On May

23

31, 2021, the Administration denied plaintiff’s claim upon rehearing. AR 146-58. Plaintiff

24

requested a hearing before an Administrative Law Judge (“ALJ”). AR 190-91. Plaintiff,

25

26

27

1 The Court adopts the parties’ citations to the certified record in this matter. All other

28

1 represented by counsel, appeared before the ALJ for a hearing on October 21, 2021. See

2 AR 48-99. Plaintiff’s attorney and the ALJ both examined plaintiff at the hearing, and the

3 ALJ received testimony from a vocational expert and from plaintiff’s husband as a lay

4 witness. See id. After reviewing the documentary evidence in the record and hearing the

5 witnesses’ testimony, the ALJ ultimately concluded plaintiff was not disabled. AR 42.

6 The ALJ’s decision followed the five steps prescribed by applicable regulations

7 under which the ALJ must sequentially determine (1) if the claimant is engaged in

8 substantial gainful employment; (2) whether the claimant suffers from a “severe”

9 impairment; (3) if any impairment meets or is medically equal to one of the impairments

10 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional

11 capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5)

12 whether a claimant can make an adjustment to other work based on his or her RFC. See 20

13 C.F.R. § 404.1250(a)(4); AR 33-34. The ALJ’s evaluation ends if at any individual step

14 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4).

15 The ALJ made a preliminary finding that plaintiff’s date last insured (“DLI”) was

16 June 30, 2019. AR 35. At step one of the five-step sequential evaluation, the ALJ found

17 plaintiff had not engaged in substantial gainful activity through the DLI. Id. At step two,

18 the ALJ found plaintiff had the following severe impairments: alcohol induced dementia,

19 obsessive compulsive disorder, and alcohol dependence in remission. Id. The ALJ also

20 found plaintiff had the following non-severe impairments: eczema, sun damage, allergic

21 rhinitis, a history of upper respiratory infection and skin lesions, and a past colonoscopy.

22 Id. At step three, the ALJ found none of the plaintiff’s impairments, alone or in

23 combination, met or exceeded the severity of the applicable regulatory listings. AR 35-37.

24 At step four, the ALJ determined plaintiff had the residual function capacity to

25 “perform a range of work at all exertional levels” but with non-exertional limitations that

26 plaintiff could “understand, remember, and carry out simple instructions for unskilled work

27 tasks”; “perform no fast-paced or production-based work”; and “tolerate few workplace

28 changes.” AR 37. The ALJ concluded step four by finding plaintiff was unable to perform

1 any past relevant work. AR 40. At step five, the ALJ found there were jobs in the national

2 economy that plaintiff could perform, including night cleaner, sweeper cleaner, and

3 laundry laborer. AR 41. The ALJ accordingly concluded plaintiff was not disabled. AR 42.

4 The Commissioner’s decision became final when the Appeals Council denied plaintiff’s

5 claim for review. AR 18-23. This appeal followed.

6 II. STANDARD OF REVIEW

7 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal

8 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r

9 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial

10 evidence standard, the Commissioner's findings are upheld if supported by inferences

11 reasonably drawn from the record; and if there is evidence in the record to support more

12 than one rational interpretation, the Court will defer to the Commissioner. Id.

13 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of

14 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate

15 nondisability determination.’” Ford v Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting

16 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). The Court’s ability to uphold

17 the ALJ’s decision is limited in that this Court may not make independent findings and

18 therefore cannot uphold the decision on a ground not asserted by the ALJ. See Stout v.

19 Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

20 III. ANALYSIS OF THE COMMISSIONER’S DECISION

21 Plaintiff raises three arguments on appeal: the ALJ erroneously discounted the

22 opinion of Dr. Clifford Taylor; the ALJ erroneously concluded plaintiff’s impairments did

23 not meet the listings at step three; and the ALJ’s RFC assessment was unsupported by

24 substantial evidence. See generally Doc. No. 13 at 4-5. The Court will address each issue

25 in turn.

26 (A) Whether the ALJ Properly Rejected Dr. Taylor’s Opinion

27 Plaintiff argues the ALJ wrongly rejected Dr. Taylor’s opinion on the basis that it

28 was formulated after plaintiff’s DLI. Doc. No. 13 at 5. Evidence of disability post-dating

1 the DLI can sometimes be relevant to proving the extent of disability arising prior to the

2 DLI. See generally, Carillo v. Comm’r of Soc. Sec., 1:22-cv-428-SAB, 2023 WL 5155866,

3 2023 U.S. Dist. LEXIS 140072, at *21-23 (E.D. Cal. Aug. 10, 2023) (collecting cases). If,

4 however, the post-DLI medical opinion is not retrospective, i.e., if it does not pertain to the

5 status of the plaintiff’s disability prior to the DLI, then it is not persuasive because it does

6 not bear upon the claimant’s disability during the period material to the disability

7 determination. See id. In this case, Dr. Clifford performed a psychological evaluation of

8 plaintiff in February 2021. See generally AR 541-49. However, the opinion is not

9 retrospective because Dr. Clifford opines on the status of plaintiff’s mental impairments

10 only as of February 2021. Id. The ALJ rejected the opinion on this basis, concluding it was

11 inconsistent with the evidence of plaintiff’s mental impairments prior to the DLI. AR 39-

12 40.

13 Plaintiff argues the ALJ failed to consider the progressive nature of her dementia.

14 Doc. No. 13 at 7-8. But a progressive disease by its very nature gets worse over time. Thus,

15 the progressive nature of plaintiff’s impairment does not permit the inference that her

16 condition was somehow worse before her DLI. A medical source like Dr. Clifford might

17 have examined plaintiff’s medical history and offered a retrospective opinion. But that is

18 not what Dr. Clifford provided. His opinion is limited to an assessment of plaintiff’s mental

19 impairments as of February 2021, and the ALJ’s decision to reject the opinion on that basis

20 was thus neither legally erroneous nor unsupported by substantial evidence.

21 (B) Whether the ALJ’s Step Three Analysis Was Erroneous

22 Plaintiff argues the ALJ failed to analyze whether her mental impairments met the

23 regulatory listings at step three. Doc. No. 13 at 8. More specifically, plaintiff argues the

24 ALJ should have found plaintiff met the “C criteria of Listing 12.02.” Id. The regulatory

25 listings are a potent tool for adjudicating disability applications because a benefits claimant

26 who meets the listings is presumed disabled. See Sullivan v. Zebley, 493 U.S. 521, 532

27 (1990). Plaintiff erroneously argues she could have established her disability by meeting

28 “the C criteria alone” of Listing 12.02. See Doc. No. 13 at 9. But Listing 12.02 actually

1 requires plaintiff “satisfy the requirements of both paragraphs A and B, or the requirements

2 of both paragraphs A and C.” See 20 C.F.R. part 404, subpart P, app. 1, part 12.A.2

3 (emphasis added).

4 As a threshold issue, the ALJ’s decision is silent on the issue of the A criteria. See

5 AR 35-37. The Court cannot tell whether the ALJ found plaintiff had met the A criteria,

6 yet failed to indicate his finding, or whether the ALJ never reached consideration of the A

7 criteria because the ALJ found plaintiff did not satisfy the B or C criteria and concluded

8 the analysis there. Neither party addresses the A criteria in the briefing, and the Court

9 concludes the issue has been waived. See Bray v. Comm’r, 554 F.3d 1219, 1226 n.7

10 (2009).2

11 The Court can, however, review the ALJ’s evaluation of the C criteria. On the one

12 hand, ALJ’s are not required to draft dissertations on every aspect of a claimant’s disability.

13 See Lambert v. Saul, 980 F.3d 1266. 1277 (9th Cir. 2020). At the same time, an ALJ must

14 cite evidence and provide explanations to support an adverse disability determination, not

15 merely offer unsupported conclusions. Cf. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th

16 Cir. 2015); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); Wentz v. Saul, 473 F.

17 Supp. 3d 1106, 1115 (E.D. Cal. 2020). The entirety of the ALJ’s analysis here is that

18 plaintiff did not meet the C criteria because “the record does not establish” plaintiff “had

19 marginal adjustment.” See AR 37. Although there is no bright line rule for how much detail

20 an ALJ must provide, whatever the standard is, this conclusory remark falls far short. The

21 Court must be able to review an ALJ’s determination for substantial evidence, but if the

22 ALJ fails to cite any evidence, the Court cannot perform any review.

23 Both parties persuasively argue their version of the facts based on the evidence in

24 the record. Compare Doc. No. 13 at 10-12 with Doc. No. 15 at 8-9. But the responsibility

25 for making disability determinations lies ultimately with the Commissioner, and the

26

27

2 The Court will address the significance of this waiver as part of the harmless error

28

1 Court’s ability to review those decisions is constrained to reviewing only the grounds

2 asserted by the ALJ. See Stout, 454 F.3d at 1054; see also Connett v. Barnhart, 340 F.3d

3 871, 874 (9th Cir. 2003) (“It was error for the district court to affirm the ALJ's credibility

4 decision based on evidence that the ALJ did not discuss.”). Because the ALJ failed to

5 supply any explanation for his determination vis-à-vis the C criteria, and deciding between

6 the competing interpretations of the evidence here would exceed the scope of this Court’s

7 power to review the ALJ’s decision, the Court must conclude the ALJ’s decision on the

8 paragraph C criteria was not supported by substantial evidence.

9 (C) Whether the Error at Step Three Was Harmless

10 Having found error in the ALJ’s decision, the Court must decide whether the error

11 was prejudicial or harmless. As a threshold issue, plaintiff bears the burden of showing the

12 ALJ’s error was harmful in this case. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). At

13 the step three analysis, plaintiff must make an affirmative showing that she meets all the

14 requirements of a listed impairment. See Burch v. Banhart, 400 F.3d 676, 682-83 (9th Cir.

15 2005). When an issue is not raised, the Court will not spot the issue and develop the

16 arguments on behalf of the parties. See Christian Legal Soc’y Chapter of Univ of Cal. v.

17 Wu, 626 F.3d 483, 488 (9th Cir. 2010). Here, as the Court has already noted, plaintiff

18 erroneously assumed she would satisfy Listing 12.02 if she met only the C criteria. See

19 Doc. No. 13 at 9. Plaintiff has not tendered to the Court the issue of whether she satisfied

20 the required A criteria; an issue the Court has deemed waived. Thus, even if the ALJ were

21 to reach a different result in considering the C criteria, it would be “inconsequential” to the

22 ultimate determination because an essential element of her eligibility under the Listings is

23 missing, and the error is harmless. Ford, 950 F.3d at 1154.

24 Notwithstanding the waiver issue—which is itself an independent and sufficient

25 ground to find harmless error—an erroneous step-three determination is harmless on the

26 merits when the ALJ’s findings at other steps show the claimant cannot meet the listings.

27 See Lewis v. Apfel, 236 F.3d 503, 512-14 (9th Cir. 2001). In Lewis, the ALJ failed to explain

28 his conclusion that a claimant’s epilepsy did not meet the relevant Listing. See 236 F.3d at

1 512. However, the remainder of the ALJ’s decision unambiguously concluded the

2 plaintiff’s epilepsy was only disabling because he failed to comply with his anti-seizure

3 medications. See id. at 513. The Court held the ALJ’s failure to properly evaluate the

4 plaintiff’s epilepsy at step three was harmless error. See id. 513-14. Because compliance

5 with medication is a necessary condition of finding a claimant’s epilepsy satisfies the

6 Listing, the plaintiff could not have met the applicable Listing no matter what the severity

7 of his symptoms. Id.

8 The same logic applies to this case. Both parties agree that plaintiff would need to

9 show “marginal adjustment” to meet the C2 criteria of the applicable listing. See Doc. No.

10 13 at 9-10; Doc. No. 15 at 7-8. Under Listing 12.02(G)(2)(c), a plaintiff can demonstrate

11 marginal adjustment “when the evidence shows that changes or increased demands have

12 led to exacerbation of [plaintiff’s] symptoms and signs and to deterioration in [plaintiff’s]

13 functioning.” But “marginal adjustment” is not the only requirement. A plaintiff must also

14 introduce proof of satisfying the C1 criteria, which require the plaintiff to show “medical

15 treatment, mental health therapy, psychosocial support(s), or a highly structured setting”

16 help alleviate the symptoms of a mental disorder. See Listing 12.02(G)(2)(b). To put it in

17 plain English, the C criteria are satisfied where treatment and support help the plaintiff’s

18 symptoms improve, but changes in daily routines make the symptoms worse. As the Court

19 will explain, that is not plaintiff’s actual argument in this case.

20 Based on the evidence cited in her briefing, plaintiff argues she lived in a structured

21 environment, receiving help from her husband to do things like get to work, etc. Doc. No.

22 13 at 10-11. The Court assumes without deciding this would qualify as a structured setting

23 or a psychosocial support. However, the testimony on which she relies to show marginal

24 improvement indicates she was too impaired to work notwithstanding the various forms of

25 care she was receiving. See generally Doc. No. 13 at 10-11. For example, the testimony

26 shows her husband needed to help her take various “tests” just to get a job at Ralph’s. See

27 id. at 10. She also cites to testimony that her mental impairments made it “hard to get out

28 the door on time.” Id. These pieces of evidence both show she was too impaired to have

1 the job in the first place, not that having the job caused her impairments to worsen. Along

2 the same vein, her husband had to drive her to work because her mental impairments

3 precluded driving. Id. Because this is the case irrespective of whether she went to work or

4 not, this evidence also shows she was too impaired to work, not that working negatively

5 affected her impairments that would otherwise have been under control. To meet the C

6 criteria, she would need to show she had her impairments under control but working made

7 them worse. The evidence simply does not and can not support such a finding.

8 The evidence, and plaintiff’s conclusions based on that evidence, actually point to

9 the B criteria of Listing 12.02, which the ALJ considered at length, and which analyze

10 whether a claimant’s mental functioning is limited to such a degree that it effectively

11 precludes performing any work. See AR 35-36. The B and C criteria are thus very different:

12 The B criteria supply the standard for an ALJ to conclude the claimant receives treatment

13 but nonetheless remains too impaired to work, while the C criteria supply the standard

14 under which an ALJ can conclude the claimant receives effective treatment, such that he

15 or she might be able to work, but nonetheless remains disabled because trying to adapt to

16 working would cause a condition to worsen. Plaintiff could never have prevailed under the

17 C criteria standard, despite the ALJ’s failure to adequately consider it, because her evidence

18 is only relevant to a finding of disability under the B criteria. Thus, as was the case in

19 Lewis, the record here shows that a crucial element of the relevant listing is absent from

20 the record, and the ALJ’s error was, therefore, harmless.

21 (D) Whether the ALJ’s RFC Assessment Was Supported by Substantial

22 Evidence

23 For her third and final claim of error, plaintiff asserts the ALJ’s RFC assessment was

24 not supported by substantial evidence for two separate reasons. Doc. No. 13 at 12. She first

25 claims the ALJ made an impermissible “independent finding” at step four. Id. She also

26 argues the ALJ failed to consider her “ability to sustain work” in making the RFC

27 assessment at issue. Id. at 12-13.

28 ////

1 (1) Whether the ALJ Made an Improper “Independent Finding”

2 Plaintiff argues the ALJ erred by “making an independent finding” because “there

3 is no medical opinion that supports” the ALJ’s RFC determination. See Doc. No. 13 at 12.

4 Plaintiff’s cites no controlling legal authority, and there is virtually no discussion of the

5 facts, so the Court must construe what, exactly, plaintiff is arguing here. To the extent

6 plaintiff contends the ALJ was required to have a medical opinion directly supporting

7 every aspect of the RFC assessment, “[s]uch a rule would tend to contravene established

8 circuit precedent that the RFC need not mirror any particular opinion, and would directly

9 contravene the regulations that provide that the agency may obtain a consultative

10 examination to resolve evidentiary ambiguity or insufficiency, not that an ALJ must do so

11 in every case.” See Hogan v. Kijakazi, 1:20-cv-1787-SKO, 2022 WL 317031, 2022 U.S.

12 Dist. LEXIS 19355, at *28 (E.D. Cal. Feb. 1, 2022) (citations omitted). The Court rejects

13 any such argument from plaintiff.

14 The Court also rejects any contention the ALJ overstepped the bounds of his

15 authority by offering a medical opinion. Although ALJs may not formulate bonafide

16 medical opinions, they are expected to incorporate medical evidence in the record into a

17 cogent RFC analysis. See Rounds v. Comm’r, 807 F.3d 996, 1006 (9th Cir. 2015); Vertigan

18 v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001); Bufkin v. Saul, 836 Fed. Appx. 578, 579

19 (9th Cir. 2021). The record here reveals the ALJ recited relevant portions of plaintiff’s

20 medical history, reviewed the opinions of on-point medical sources, took plaintiff’s

21 testimony, and translated the evidence probative of plaintiff’s impairments into an opinion

22 about plaintiff’s ability to work notwithstanding those impairments. See generally AR 37-

23 40. The ALJ did not interpret raw medical data and offer an opinion that could only be

24 provided by a medical professional. The Court, accordingly, concludes there was no error

25 on this basis.

26 ////

27 ////

28

1 (2) Whether the ALJ Erred by Failing to Consider Plaintiff’s “Ability

2 to Sustain Work” Under the Compassionate Allowances Program

3 The Court understands the thrust of plaintiff’s argument here to be as follows:

4 plaintiff should have been found disabled under the Administration’s “Compassionate

5 Allowance initiative” because plaintiff has Alzheimer’s disease, which is irreversible and

6 progressive, and she cannot therefore “sustain” the ability to work given the inevitable

7 worsening of her disease. See generally Doc. No. 13 at 13-15. A “[c]ompassionate

8 allowance” is a “determination or decision” made by the Commissioner “under a process

9 that identifies for expedited handling claims that involve impairments that invariably

10 qualify under the” Listings “based on minimal, but sufficient, objective medical evidence.”

11 20 C.F.R. § 404.1602.

12 At this point, there appears to be “little authority concerning the compassionate

13 allowance program.” Doto v. Berryhill, 17-cv-1120-VKD, 2018 WL 4680212, 2018 U.S.

14 Dist. LEXIS 168347, at *44 (N.D. Cal. Sept. 28, 2018). Nonetheless, the judicial approach

15 to the compassionate allowance program has thus far been that it merely streamlines and

16 expedites the process of evaluating a disability claim, but it does not alter the standard for

17 when an applicant is considered disabled. Id. at *44-45; see also Steven H. v. Comm’r,

18 1:22-cv-580, 2023 WL 4072124, 2023 U.S. Dist. LEXIS 106910, at *6-8 (D. Ohio June

19 20, 2023) (collecting cases).

20 An intriguing question is “must the ALJ find an applicant is disabled if the applicant

21 suffers from an impairment that meets the criteria for a compassionate allowance?”

22 Plaintiff does not directly assert this argument, but her position necessarily relies on it

23 because the only way the compassionate allowance program would matter to this case is if

24 it would have changed the outcome of her disability determination. The dominant judicial

25 approach has been to answer that question in the negative, holding the Commissioner may

26 proceed under either the compassionate allowance framework or the standard five step

27 analysis, and courts are not free to second-guess an administrative decision because the

28 Commissioner elected one method over the other. See Steven H., 2023 U.S. Dist. LEXIS

1 106910, at *6-8. At the same time, the Court is not aware of any binding authority so

2 holding. Moreover, the Court can see the logic of arguments to the contrary: after all, what

3 use is a compassionate allowance program if the Administration can freely ignore it without

4 the possibility of review? And if the Administration has determined an impairment

5 “invariably” qualifies under the Listings, why should the Administration not be bound by

6 that determination? In an appropriate case, these issues might merit serious consideration

7 because they could be outcome determinative. But this Court does not need to resolve these

8 issues because it remains the case that, even if plaintiff were entitled to have the ALJ

9 consider her impairments under the compassionate allowance framework, she would

10 nonetheless need to be disabled under that framework, which means her qualifying

11 disability would need to arise prior to her DLI of June 30, 2019.

12 The earliest evidence in the record that supports plaintiff’s contention she suffers

13 from the compassionate allowance-qualifying condition of early onset Alzheimer’s is the

14 disability report she produced on October 22, 2020. AR 307-15. That is more than a year

15 after her DLI. Plaintiff has not cited to any evidence in the record indicating she was

16 diagnosed with Alzheimer’s disease prior to her DLI. The Court’s independent review of

17 the record has not revealed any indication of an Alzheimer’s diagnosis prior to the DLI.

18 The earliest date on which the Court can find an objective medical opinion indicating

19 Alzheimer’s disease might be a “likely” source of plaintiff’s worsening dementia (which

20 nonetheless falls short of a conclusive diagnosis), is a report from Dr. Gustavo Alberto

21 Delgado dated November 11, 2020. See AR 579. Records generated prior to plaintiff’s DLI

22 instead treat her dementia as alcohol-induced based on plaintiff’s history of alcohol use.

23 See, e.g., AR 406-07, 699-704. The record in this case hardly supports a conclusive finding

24 that plaintiff suffers from Alzheimer’s disease even today; and it certainly cannot sustain a

25 finding that she had Alzheimer’s disease prior to her DLI, which would be a necessary

26 condition of finding her eligible under the compassionate allowance framework. Given

27 that, the ALJ’s failure to evaluate her claim as a possible compassionate allowance was not

28 error.

1 IV. CONCLUSION

2 This is an unfortunate case because, as the ALJ noted, it appears reasonably clear

3 ||from the record that plaintiff's condition worsened after the expiration of her date last

4 |linsured. See, e.g., AR 36, 38. It may well have been the case that, by the time of the hearing,

5 || plaintiff's impairments would have supported a finding of disability. However, she needed

6 ||to be disabled prior to her DLI, and the ALJ’s conclusion that plaintiff did not become

7 disabled prior to that date was correct. This reflects the key distinction between Social

8 ||Security Disability Insurance (which is an earned benefit) with Supplemental Security

9 ||Income (which is not). Plaintiff's condition may prove a better fit for the latter, a

10 || determination on which will not involve the rigid application of a DLI, and which is also

11 |/eligible for a compassionate allowance determination. The decision of the Commissioner

12 |/in this matter is AFFIRMED.

13 Dated: August 21, 2024 Jl. Lan)

14 Mian □□

15 Hori. Karen 8S. Crawford

United States Magistrate Judge

16

17

18

19

20

21

22

23

24

25

26

27

28