Opinion

Shaylene M. Hilliard v. Kilolo Kijakazi

Court
District Court, C.D. California
Filed
Jul 31, 2023
Cited by
0 cases
Authority
More cited than 16.4%

“The revised social security 22 regulations are clearly irreconcilable with our caselaw according special deference 23 to the opinions of treating and examining physicians on account of their 24 relationship with the claimant.”

How later courts described this case

  • “The revised social security 22 regulations are clearly irreconcilable with our caselaw according special deference 23 to the opinions of treating and examining physicians on account of their 24 relationship with the claimant.”
  • an ALJ may translate assessed opined limitations into a concrete 13 restriction in the RFC determination and it may be consistent with the medical 14 opinion even though it does not include the same verbiage
  • ALJ error harmless if 23 (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path 24 may reasonably be discerned despite the error

Written by the judges who cited it.

The opinion

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 SHAYLENE M. H.,1 Case No. 5:22-cv-0987-JC

12 Plaintiff,

MEMORANDUM OPINION

13 v.

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KILOLO KIJAKAZI, Acting

15 Commissioner of Social Security,

16 Defendant.

17 I. SUMMARY

18 On June 13, 2022, plaintiff filed a Complaint seeking review of the

19 Commissioner of Social Security’s denial of plaintiff’s application for benefits.

20 The parties have consented to proceed before the undersigned United States

21 Magistrate Judge.

22 This matter is before the Court on plaintiff’s motion for summary judgment

23 (“Plaintiff’s Motion”) and defendant’s memorandum in support of Answer

24 (“Defendant’s Mem.”). The Court has taken Plaintiff’s Motion and Defendant’s

25 Mem. under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15.

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27 1Plaintiff’s name is partially redacted to protect plaintiff’s privacy in compliance with

28 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

Administration and Case Management of the Judicial Conference of the United States.

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1 Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge

3 (“ALJ”) are supported by substantial evidence and are free from material error.

4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE

5 DECISION

6 On or about February 5, 2019, plaintiff protectively filed an application for

7 supplemental security income (“SSI”), alleging disability beginning on December

8 27, 2017 due to bipolar disease, heart palpitations, and high cholesterol.2

9 (Administrative Record (“AR”) 247-48, 378-82). The ALJ subsequently

10 examined the medical record and heard testimony from plaintiff (who was

11 represented by counsel) and a vocational expert. (AR 31-44).

12 On August 27, 2021, the ALJ determined that plaintiff had not been

13 disabled through the date of the decision. (AR 15-26). Specifically, the ALJ

14 found: (1) plaintiff suffered from the following severe impairments: degenerative

15 disc disease of the lumbar and thoracic spine with stenosis and bulging discs,

16 hypertensive vascular disease, status post left shoulder surgery, synovitis of the

17 knee with internal derangement and tear of the medial meniscus status post

18 bilateral knee surgery, borderline intellectual functioning, and bipolar disorder

19 (AR 17); (2) plaintiff’s impairments, considered individually or in combination,

20 did not meet or medically equal a listed impairment (AR 18-20); (3) plaintiff

21 retained the residual functional capacity (“RFC”) to perform medium work (20

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2The record reflects plaintiff previously received SSI benefits from December 17, 1992

24 through at least February 1, 2017. (AR 244-45). On February 10, 2017, the Social Security

Administration notified plaintiff that she had received overpayments in the amount of $19,420.50

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due to unreported spousal income and in-kind support of free rent from October 2014 through

26 February 2017. (AR 244-45). Plaintiff disputed the overpayment and facts, but on March 23,

2018, an administrative law judge found plaintiff liable for the overpayment. (AR 244-46). The

27 Disability Report connected to the application at issue states plaintiff had no prior filings (AR

28 393) and the ALJ neither mentioned plaintiff’s prior receipt of benefits nor the reason they were

discontinued.

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1 C.F.R, § 416.967(c)), with additional limitations3 (AR 20-24); (4) plaintiff had no

2 past relevant work (AR 24); and (5) plaintiff could perform other work existing in

3 significant numbers in the national economy and therefore was not disabled (AR

4 24-25).

5 On April 12, 2022, the Appeals Council denied plaintiff’s application for

6 review. (AR 1-3).

7 III. APPLICABLE LEGAL STANDARDS

8 A. Administrative Evaluation of Disability Claims

9 To qualify for disability benefits, a claimant must show that she is unable

10 “to engage in any substantial gainful activity by reason of any medically

11 determinable physical or mental impairment which can be expected to result in

12 death or which has lasted or can be expected to last for a continuous period of not

13 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)

14 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded

15 by regulation on other grounds as stated in Sisk v. Saul, 820 Fed. App’x 604, 606

16 (9th Cir. 2020); 20 C.F.R. § 416.905(a). To be considered disabled, a claimant

17 must have an impairment of such severity that she is incapable of performing work

18 the claimant previously performed (“past relevant work”) as well as any other

19 “work which exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094,

20 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).

21 To assess whether a claimant is disabled, an ALJ is required to use the five-

22 step sequential evaluation process set forth in Social Security regulations. See

23 Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)

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3The ALJ determined that plaintiff would be limited to: (1) occasionally climbing

26 ladders, ropes, or scaffolds; (2) frequently climbing ramps or stairs; (3) frequently balancing,

stooping, kneeling, crouching, or crawling; (4) occasionally overhead reaching with the left upper

27 extremity; (5) jobs allowing normal breaks every two hours; (6) simple, routine, and repetitive

28 tasks not at a fast or production pace; and (7) jobs with occasional interaction with co-workers

and supervisors and no interaction with the general public. (AR 20).

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1 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,

2 416.920). The claimant has the burden of proof at steps one through four – i.e.,

3 determination of whether the claimant was engaging in substantial gainful activity

4 (step 1), has a sufficiently severe impairment (step 2), has an impairment or

5 combination of impairments that meets or medically equals one of the conditions

6 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and

7 retains the residual functional capacity to perform past relevant work (step 4).

8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The

9 Commissioner has the burden of proof at step five – i.e., establishing that the

10 claimant could perform other work in the national economy. Id.

11 B. Federal Court Review of Social Security Disability Decisions

12 A federal court may set aside a denial of benefits only when the

13 Commissioner’s “final decision” was “based on legal error or not supported by

14 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871

15 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The

16 standard of review in disability cases is “highly deferential.” Rounds v. Comm’r

17 of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation

18 marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could

19 reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at

20 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must

21 be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.

22 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if

23 (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path

24 may reasonably be discerned despite the error) (citation and quotation marks

25 omitted).

26 Substantial evidence is “such relevant evidence as a reasonable mind might

27 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining

28 “substantial evidence” as “more than a mere scintilla, but less than a

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1 preponderance”) (citation and quotation marks omitted). When determining

2 whether substantial evidence supports an ALJ’s finding, a court “must consider the

3 entire record as a whole, weighing both the evidence that supports and the

4 evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.

5 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).

6 Federal courts review only the reasoning the ALJ provided, and may not

7 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

8 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

9 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s

10 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

11 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

12 A reviewing court may not conclude that an error was harmless based on

13 independent findings gleaned from the administrative record. Brown-Hunter, 806

14 F.3d at 492 (citations omitted). When a reviewing court cannot confidently

15 conclude that an error was harmless, a remand for additional investigation or

16 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173

17 (9th Cir. 2015) (citations omitted).

18 IV. DISCUSSION

19 Plaintiff raises two issues that are substantively the same, arguing that the

20 ALJ failed properly to evaluate the opinion of the consultative examiner and that

21 the ALJ’s RFC determination was not supported by substantial evidence because it

22 did not incorporate all of the consultative examiner Dr. Jessica Durr’s opined

23 limitations. (Plaintiff’s Motion at 2-6). Plaintiff has not shown a reversal or

24 remand is warranted on the foregoing bases.

25 A. Pertinent Law

26 For claims filed after March 27, 2017 (such as plaintiff’s present claims),

27 new regulations govern the evaluation of medical opinion evidence. Under these

28 regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine

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1 which opinions are the most “persuasive” by focusing on several factors:

2 (1) supportability; (2) consistency; (3) relationship with the claimant (including

3 the length of treatment, frequency of examinations, purpose of treatment, extent of

4 treatment, whether the medical source examined the claimant); (4) the medical

5 source’s specialty; and (5) “other” factors. See 20 C.F.R. § 416.920c(c)(1)-(5).

6 The two most important factors in determining the persuasiveness of medical

7 opinions are supportability and consistency with the evidence. See 20 C.F.R.

8 § 416.920c(a). ALJs must explain how they considered the factors of

9 supportability and consistency, but need not explain how they considered any

10 other factor. See 20 C.F.R. § 416.920c(b).

11 Supportability means the extent to which a medical source supports

12 the medical opinion by explaining the “relevant. . . objective medical

13 evidence.” Consistency means the extent to which a medical opinion

14 is “consistent. . . with the evidence from other medical sources and

15 nonmedical sources in the claim.”

16 Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal citations

17 omitted; citing 20 C.F.R. § 404.1520c(c)(1), (2)).4

18 The new regulations also eliminated the term “treating source,” as well as

19 the rule previously known as the treating source rule or treating physician rule,

20 which formerly required special deference to the opinions of treating sources. See

21 20 C.F.R. § 416.920c; Woods, 32 F.4th at 792 (“The revised social security

22 regulations are clearly irreconcilable with our caselaw according special deference

23 to the opinions of treating and examining physicians on account of their

24 relationship with the claimant.”). Even so, in evaluating medical opinion evidence

25 “under the new regulations, an ALJ cannot reject an examining or treating doctor’s

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27 4Such terms have the same meaning in the referenced Disability Insurance Beneft

28 regulations (20 C.F.R. § 404.1520c(c)(1), (2)) as they do in the corresponding governing SSI

regulations (20 C.F.R. § 416.920c(c)(1), (2)).

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1 opinion as unsupported or inconsistent without providing an explanation

2 supported by substantial evidence.” Woods, 32 F.4th at 792. Finally, the new

3 regulations command that an opinion that a claimant is disabled or not able to

4 work is “inherently neither valuable nor persuasive,” and an ALJ need not provide

5 any analysis about how such evidence is considered. See 20 C.F.R.

6 § 416.920b(c)(3).

7 B. Summary of the Consultative Examiner’s Opinion

8 Dr. Jessica Durr, a pyschologist, examined plaintiff on May 16, 2021. (AR

9 972-77). Dr. Durr did not review any medical records. (AR 974). Dr. Durr

10 observed primarily normal objective findings, but psychological testing placed

11 plaintiff in the borderline intellectual range. (AR 974-76). Based on plaintiff’s

12 history, the mental status examination, and the psychological tests, Dr. Durr

13 diagnosed plaintiff with borderline intellectual functioning and bipolar disorder.

14 (AR 976). Dr. Durr opined:

15 [Plaintiff] presents with the ability to understand, remember, and

16 carry out short and simplistic instructions. She presents with a mild

17 inability to understand, remember, and carry out detailed instructions.

18 She is likely to perform better with auditory instructions than with

19 visual ones. [Plaintiff] presents with the ability to make simplistic

20 work-related decisions without special supervision. She has a mild

21 inability to maintain consistency and pace throughout the day. She

22 has a moderate inability to follow normal rules of the workplace.

23 [Plaintiff] is at risk for calling in sick, not showing up, or leaving

24 early. . . Plaintiff has a mild inability to interact appropriately with

25 supervisors, coworkers, and peers.

26 (AR 976).

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1 C. Analysis

2 The ALJ determined plaintiff had the mental RFC to perform simple,

3 routine, and repetitive tasks not at a fast or production pace, with occasional

4 interaction with co-workers and supervisors and no interaction with the general

5 public. (AR 20). In determining plaintiff’s mental RFC, the ALJ found Dr. Durr’s

6 opinion “somewhat persuasive as to the finding of mild to moderate limitations.”5

7 (AR 24). The ALJ discussed Dr. Durr’s opinion and found her mild and moderate

8 limitations to be generally consistent with plaintiff’s conservative treatment

9 history and supported by plaintiff’s treatment notes and activities. (AR 23).

10 Nevertheless, taking into account the entire record, the ALJ found Dr. Durr’s

11 opinion to be only somewhat persuasive and actually assessed more restrictive

12 limitations than those recommended by Dr. Durr.

13 In the area of understanding, remembering, or applying information, the

14 ALJ noted that plaintiff’s ability to recall was intact during Dr. Durr’s examination

15 (AR 975); plaintiff exhibited normal speech and thought processes in the treatment

16 notes (see, e.g., AR 916, 961-62, 965, 967); and the record showed that she was

17 capable of counting change, managing finances, reading, and playing board

18 games. (AR 399-400, 409, 974). But the ALJ also found that plaintiff’s

19 psychometric testing results suggested plaintiff had moderate, and not mild,

20 limitations in understanding. (AR 19, 24). The ALJ reasonably translated this

21 limitation to simple, routine, and repetitive tasks. (AR 19). See Rounds, 807 F.3d

22 at 1006 (“[T]he ALJ is responsible for translating and incorporating clinical

23 findings into a succinct RFC.”).

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5The ALJ found the opinions of the state agency physicians to be not persuasive. (AR

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23). The ALJ noted that their opined mild limitations in all functional areas were “somewhat

27 supported by the largely normal objective findings,” however they were an underestimate of

plaintiff’s limitations given her extensive medication treatment and psychometric testing results.

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(AR 23).

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1 Similarly, in the area of concentrating, persisting, or maintaining pace, the

2 ALJ noted that the record reflected plaintiff was capable of activities requiring

3 concentration, but she was unable to perform serial threes and sevens at the

4 consultative examination. (AR 19, 23, 975). The ALJ again reasonably concluded

5 the limitation in this area was actually moderate and a restriction to “simple,

6 routine, and repetitive tasks not at a fast or production rate” accommodated for it.

7 Finally, the ALJ noted that plaintiff’s persistent depressive symptoms may

8 affect her ability to relate to others and assessed greater interaction limitations

9 than Dr. Durr recommended. (AR 19).

10 Plaintiff does not disagree with the ALJ’s above evaluation or his

11 discussion of the medical evidence. Instead, plaintiff argues the ALJ erred

12 because the ALJ had to address, but failed to address each limitation

13 recommended by Dr. Durr. An ALJ must consider all relevant evidence in the

14 record when assessing a claimant’s RFC. Robbins v. Soc. Sec. Admin., 466 F.3d

15 880, 883 (9th Cir. 2006); Social Security Ruling (“SSR”) 96-8p, 1996 WL 1996

16 WL 374184, at *5. But an ALJ is neither required to discuss every piece of

17 evidence nor every word or limitation in an opinion. See, e.g., James T. v.

18 Kijakazi, 2022 WL 2952469, at *6 (S.D. Cal. Jul. 26, 2022) (“The Court

19 acknowledges that the ALJ need not discuss every word or every limitation in an

20 opinion.”), report and recommendation adopted, 2022 WL 4280647 (S.D. Cal.

21 Sept. 15, 2022); Alvarez v. Comm’r of Soc. Sec., 2022 WL 2359322, at *3 (E.D.

22 Cal. June 29, 2022) (“While the ALJ did not detail which opined limitations were

23 somewhat persuasive and which were not – a fact Plaintiff criticizes – the ALJ was

24 not required to perform a function-by-function analysis, nor address each

25 work-related restriction identified in the record so long as the RFC is otherwise

26 supported by substantial evidence.”) (citation and internal quotations marks

27 omitted); Fausto S.H. v. Kijakazi, 2022 WL 644167, at *5 (C.D. Cal. Jan. 24,

28 2022) (“An ALJ is not obligated to discuss . . . every word of a doctor’s opinion or

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1 include limitations not assessed by the doctor.”); Charlene J. R. v. Kijakazi, 2021

2 WL 5051930, at *4 (C.D. Cal. Oct. 29, 2021) (finding the ALJ was only required

3 to consider the supportability and consistency of an opinion in determining

4 persuasiveness and not required to provide specific reasons as to why he did not

5 adopt every particular limitation). However, when a limitation is significant and

6 contrary to the ALJ’s assessed RFC, then the ALJ has some duty to explain why it

7 has been rejected. See Robbins, 466 F.3d at 883.

8 Here, the ALJ did not err. Contrary to plaintiff’s assertion, the ALJ appears

9 to have reasonably determined that the assessed mental RFC accommodated Dr.

10 Durr’s opinion that plaintiff had moderate difficulties with following normal rules

11 of the workplace. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th

12 Cir. 2008) (an ALJ may translate assessed opined limitations into a concrete

13 restriction in the RFC determination and it may be consistent with the medical

14 opinion even though it does not include the same verbiage). The ALJ specifically

15 stated that this moderate limitation and Dr. Durr’s opined mild limitations were

16 generally consistent with the record. As for Dr. Durr’s opinion that plaintiff was

17 “at risk” for missing work, this opinion was neither significant nor contradictory to

18 the RFC. The phrasing of the opinion was vague and suggests that the risk for

19 missing work was at most mild.

20 In sum, the ALJ properly evaluated Dr. Durr’s opinion under the revised

21 regulations. The evidence reasonably supports the ALJ’s interpretation and the

22 Court may not substitute its judgment. Because the ALJ properly evaluated Dr.

23 Durr’s opinion and translated it to functional limitations, the RFC determination is

24 supported by substantial evidence.

25 Accordingly, a remand or reversal on this basis is not warranted.

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1 V. CONCLUSION

2 For the foregoing reasons, the decision of the Commissioner of Social

3 Security is AFFIRMED.

4 LET JUDGMENT BE ENTERED ACCORDINGLY.

5 DATED: July 31, 2023

6 ____________/s/____________________

Honorable Jacqueline Chooljian

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UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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