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Kevin B. v. Berryhill

United States District Court, S.D. California

July 25, 2019

KEVIN B., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Rating

          REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 13, 14)

          ROBERT N. BLOCK United States Magistrate Judge.

         This Report and Recommendation is submitted to the Honorable Thomas J. Whelan, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         On March 26, 2018, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits. (ECF No. 1.)

         Now pending before the Court and ready for decision are the parties' cross-motions for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that the Commissioner's cross-motion for summary judgment be GRANTED, and that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice.

         PROCEDURAL BACKGROUND

         On June 1, 2016, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability beginning November 1, 2015. (Certified Administrative Record [“AR”] 323-24, 325-26.) After his claim was denied initially and upon reconsideration (AR 255-58, 261-65), plaintiff requested an administrative hearing before an administrative law judge (“ALJ”). (AR 268-69.) An administrative hearing was held on August 15, 2017. Plaintiff appeared at the hearing with counsel, and testimony was taken from him and a vocational expert (“VE”). (AR 194-222.)

         As reflected in his September 14, 2017 hearing decision, the ALJ found that plaintiff had not been under a disability, as defined in the Social Security Act, at any time from November 1, 2015, the alleged onset date, through December 31, 2016, the date last insured. (AR 27-37.) On November 7, 2017, plaintiff requested review of the ALJ decision. (AR 319-22.) The ALJ's decision became the final decision of the Commissioner on January 26, 2018, when the Appeals Council denied plaintiff's request for review. (AR 1-4.) This timely civil action followed.

         SUMMARY OF THE ALJ'S FINDINGS

         In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520.[1] At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity during the period from his alleged onset date of November 1, 2015 through his date last insured of December 31, 2016. (AR 29.)

         At step two, the ALJ found that plaintiff had the following severe impairments: left shoulder arthropathy, a depressive disorder, an anxiety disorder, and posttraumatic stress disorder (“PTSD”). (AR 29.)

         At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (AR 30.)

         Next, the ALJ determined that, through the date last insured, plaintiff had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. § 404.1567(c), except as follows:

“[H]e is limited to frequent overhead reaching with the non-dominant upper extremity and he is limited to understanding, remembering, and carrying out simple, routine, repetitive tasks, with standard industry work breaks every two hours, to no interaction with the general public, and to occasional work-related, non-personal, non-social interaction with coworkers and supervisors involving no more than a brief exchange of information or hand-off of product.” (AR 31.)

         For purposes of his step four determination, the ALJ adduced and accepted the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC would be unable to perform the duties of plaintiff's past relevant work. (AR 36.)

         The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC could perform the requirements of representative unskilled occupations that existed in significant numbers in the national economy (i.e., lab cleaner and housekeeping cleaner), the ALJ found that plaintiff was not disabled. (AR 36-37.)

         DISPUTED ISSUES

         As reflected in plaintiff's summary judgment motion, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:

         1. Whether the ALJ erred in assessing the opinion of plaintiff's treating psychiatrist, Dr. Nuhic.

         2. Whether the post-hearing medical source statement of Dr. Nuhic submitted to the Appeals Council warrants remand.

         3. Whether the ALJ erred in evaluating plaintiff's disability rating with the Department of Veteran Affairs (“VA”).

         4. Whether the ALJ erred in his adverse credibility determination.

         STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

         DISCUSSION

         Preliminarily, the Court notes that, under the Commissioner's regulations, an impairment is severe only if it significantly limits the claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 405.1520(c) (emphasis added). Basic work activities are “abilities and aptitudes necessary to do most jobs, ” including mental activities such as understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. See Social Security Ruling (“SSR”) 85-28.[2] Here, the ALJ did find at step two of the sequential evaluation process that plaintiff had severe mental impairments (i.e., a depressive disorder, an anxiety disorder, and PTSD). (See AR 29.) The ALJ proceeded to include limitations based on plaintiff's mental impairments in his determination of plaintiff's RFC. Specifically, the ALJ found that plaintiff was “limited to understanding, remembering, and carrying out simple, routine, repetitive tasks, with standard industry work breaks every two hours, to no interaction with the general public, and to occasional work-related, non-personal, non-social interaction with coworkers and supervisors involving no more than a brief exchange of information or hand-off of product.” (See AR 31.)

         Accordingly, in the Court's view, the real issues presented by Disputed Issue Nos. 1, 3, and 4 is whether, in determining plaintiff's mental RFC, (a) the ALJ failed to properly consider the opinions of plaintiff's treating psychiatrist, Dr. Nuhic, to the effect that plaintiff was unable to work due to his mental condition, (b) the ALJ failed to properly consider the VA's disability rating, and (c) the ALJ failed to properly consider plaintiff's subjective symptom testimony.

         A. Reversal is not warranted based on the ALJ's alleged failure to properly ...


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