Opinion
No. CV-18-0366-TUC-RM (JR)
02-05-2020
Maria Francisca Aldaz, Plaintiff, v. Nancy Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Maria Aldaz brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying her claim for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381-1383f. Pending before the court are an Opening Brief filed by Plaintiff (Doc. 19), the Commissioner's Responsive Brief (Doc. 23), and the Plaintiff's Reply Brief (Doc. 24). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court reverse the Commissioner's final decision and remand for a rehearing.
I. Introduction
Plaintiff presented four issues in her Opening Brief: (1) whether the Administrative Law Judge ("ALJ") erred by presenting a hypothetical to the Vocational Expert ("VE") that was inconsistent with the ALJ's residual functional capacity ("RFC") determination; (2) whether the ALJ erred by failing to evaluate evidence that Aldaz was obese in and after April 2016; (3) whether the ALJ erred by failing to obtain a medical opinion to inform her decision about the functional significance of Aldaz's November 2015 and December 2016 MRIs; and (4) whether the ALJ erred by relying on testimony from the VE that relied on non-existent occupational codes. Based on these alleged errors, Aldaz requests that the matter be remanded for payment of benefits or, in the alternative, for another hearing.
In response, the Commissioner agrees the ALJ erred in presenting the hypothetical to the VE and that one of the occupational codes cited by the VE is not listed in the Dictionary of Occupational Titles ("DOT"). The Commissioner disagrees that the ALJ erred by failing to consider Aldaz's obesity, but nevertheless agrees that remand is justified based on the ALJ's errors and that remand would also be useful for the ALJ to obtain a physical consultative examination or evidence from a medical expert regarding the significance of Aldaz's MRIs. The Commissioner concludes by requesting the remand order directing the ALJ to:
- offer Plaintiff the opportunity for a hearing;Responsive Brief, p. 9.
- obtain a physical consultative examination or evidence from a medical expert;
- reevaluate Plaintiff's medically determinable impairments at step two of the sequential evaluation process;
- reevaluate Plaintiff's alleged symptoms
- reassess Plaintiff's maximum residual functional capacity; and
- obtain supplemental vocational expert evidence to clarify the effect of the assessed limitations on Plaintiff's ability to perform other work in the national economy.
In her reply, Aldaz indicates that she informed the Commissioner that she no longer sought a remand for benefits but sought only a remand for further proceedings. Aldaz further explained that while the parties agreed that remand is appropriate, they disagreed about the terms of the remand. Aldaz requests that the remand order direct the ALJ to:
- consolidate any pending subsequent application;Reply, p. 5.
- offer Plaintiff the opportunity for a hearing and to submit additional evidence and arguments;
- readjudicate Plaintiff's consolidated applications using the five-step; sequential evaluation;
-reevaluate Plaintiff's medically determinable impairments, including obesity, and subjective symptoms based on the new record on remand;
- if the record on remand does not include a medical opinion about the functional significance of the November 2015 MRI of the cervical spine and the December 2016 MRI of the lumbar spine, obtain such an opinion;
- if the sequential evaluation goes beyond step three, reassess Plaintiff's residual functional capacity based on the new record on remand;
- if the ALJ relies on vocation al-expert testimony for his or her decision, rely on testimony in response to an accurate and complete hypothetical question, including Plaintiff's need to avoid fumes and chemicals; and
- render a new decision based on the new record on remand.
II. Background
A. Procedural
Aldaz filed an application for SSI on April 29, 2015, alleging disability beginning January 1, 2014. (Administrative Record (AR) 44, 284.) The application was denied initially and upon reconsideration. (AR 218, 225.) Aldaz requested a hearing before an ALJ. (AR 229.) On June 14, 2017, she appeared with counsel and testified before an ALJ. (AR 153-196.) During the hearing, Aldaz amended her alleged onset date to her SSI application filing date, i.e., April 29, 2015. (AR 29, 177.) On September 19, 2017, the ALJ issued a Decision finding Aldaz not disabled within the meaning of the Act and therefore not entitled to benefits. (AR 29-44.) The Decision became the final decision of the Commissioner when the Appeals Council declined to review the ALJ's decision. (AR 1.) This appeal followed.
B. Plaintiff's background
Aldaz was born in 1966 and was 50 years-old on the date the ALJ issued her Decision. (AR 44, 284.) She has completed the ninth grade; she did not finish the tenth grade. (AR 158.) The ALJ found that Aldaz could not perform her past relevant work, which the VE classified as nurse's assistant, combination assistant manager and stock clerk, and stock clerk. (AR 177-79.)
III. The ALJ's Application of the Disability Standards
For purposes of Social Security benefits determinations, a disability is defined as:
The inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.20 C.F.R. §§ 404.1505, 416.905(a).
Whether a claimant is disabled is determined using a five-step evaluation process. It is claimant's burden to show (1) she has not worked since the alleged disability onset date, (2) she has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) her residual functional capacity (RFC) precludes her from doing her past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies her burden though step four, the burden shifts to the Commissioner to show at step five that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
Here, at step one, the ALJ found that Aldaz had not engaged in substantial gainful activity since April 29, 2015, her application date. (AR 31.) At step two of the inquiry, the ALJ concluded that Aldaz had the following "severe" impairments: degenerative disc disease and fibromyalgia (AR 31-35.) At step three, the ALJ determined that Aldaz's impairment did not meet or medically equal one of the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. (AR. 35-37.)
Between steps three and four, the ALJ conducted an RFC assessment, and concluded that:
"Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). A plaintiff's residual functional capacity is what he can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n. 5-7 (9th Cir. 1989). --------
[Aldaz] has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) including lifting up to 20 pounds occasionally and 10 pounds frequently, standing and/or walking up to 6 hours in an 8-hour workday, and sitting up to 6 hours in an 8-hour workday, with the following restrictions: the claimant should never climb ladder except as follows: work that can be semi-skilled, with only occasional contact with the public and co-workers.(AR 37-42.) At step four, the ALJ found that, through her date last insured, Aldaz was unable to perform any past relevant work. (AR 42.)
At step five, the ALJ, based on the testimony of a vocational expert, concluded that "[c]onsidering [Aldaz's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Aldaz] can perform." (AR 42-43.) Specifically, the ALJ determined that Aldaz was able to perform the work requirements of an inspection and hand packager, small products assembler, and final inspector. (AR 43.) Therefore, the ALJ concluded that Aldaz "has not been under a disability, as defined in the Social Security Act, since April 29, 2015, the date the application was filed (20 CFR 416.920(g))." (AR 43.)
IV. Discussion
The parties agree that the ALJ decision must be reversed and the case remanded for further proceedings. The parties, however, have minor disagreements on the terms of the remand. The Court will address those disagreements and recommend that the terms of remand allow the ALJ to fully reexamine the record and, because that reexamination will impact Aldaz's RFC, direct the ALJ to reconsider all of Aldaz's impairments. 20 C.F.R. §§ 416.920(e), 416.945(e); SSR 96-8p.
1. Consolidation with any pending subsequent application
In her Reply, Aldaz requests that the Court order the ALJ on remand to consolidate the underlying application with any pending subsequent application. Because the request appears first in her Reply, the Commissioner understandably did not weigh in on consolidation. Aldaz also has not cited legal authority in support of the request or provided a factual basis that would support a finding that consolidation is justified by judicial economy. As such, the Court recommends that consolidation be left to the Commissioner's discretion.
2. Opportunity for a hearing and the submission of evidence
The parties agree that Aldaz should be afforded the opportunity for a hearing. They also agree that Aldaz should be permitted to submit additional medical evidence regarding the functional significance of Aldaz's November 2015 and December 2016 MRIs. The Commissioner also does not object to the submission of a "physical consultative examination or evidence from a medical expert." Because the parties agree that additional evidence is necessary, the Court recommends that Aldaz be permitted to submit any additional relevant evidence and argument.
However, "the administrative law judge is not required to order a consultative examination unless the record establishes that such an examination is necessary to enable the administrative law judge to render a decision." Holladay v. Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988). Thus, it is within the discretion of the ALJ to order a consultative examination. Therefore, the Court is not inclined to add this directive, as the ALJ will be receiving additional information. If after reviewing additional evidence the ALJ requires a consultative examination to evaluate the claim, the Court recommends that the decision whether to do so be left to the discretion of the ALJ.
3. Aldaz's remaining requests
Aldaz's remaining requests are largely consistent with the ALJ's role in reevaluating her application. Specifically, Aldaz requests that the Court direct the ALJ to readjudicate Aldaz's application using the five-step sequential evaluation; reevaluate her medically determinable impairments, including obesity, and subjective symptoms based on the new record on remand; reassess Plaintiff's residual functional capacity based on the new record on remand; and, if the ALJ relies on testimony from a VE, to rely on testimony in response to an accurate and complete hypothetical question. These requirements are all encapsulated in the five-step sequential evaluation process applicable to all SSI decisions rendered by ALJs. Thus, the Court recommends that the ALJ be directed to reevaluate Aldaz's application in its entirety.
V. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order granting Plaintiff's request to reverse the Commissioner's final decision and remand to the ALJ to conduct further proceedings. It is further recommended that the ALJ be directed to:
1. Consider the consolidation of this claim file with any other application that is pending at the administrative level;
2. offer the claimant the opportunity for a de novo hearing;
3. Develop the record, obtain any additional necessary evidence and, if necessary, order a consultative examination;
4. Take any other action as deemed necessary; and
5. Issue a new decision.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless leave to do so is granted by the district court. If any objections are filed, this action should be designated case number: CV 18-0366-TUC-RM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 5th day of February, 2020.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge