Campbell v. Commissioner of Social Security

Filing 22

MEMORANDUM DECISION AND ORDER - Plaintiffs Objections (Dkt. 20 ) are OVERRULED. The Report and Recommendation entered on August 16, 2023 (Dkt. 19 ) is INCORPORATED and ADOPTED in its entirety; The Petition for Review (Dkt. 1 ) is DENIED. T he Commissioners decision is AFFIRMED. This action is DISMISSED with prejudice and CLOSED. The Court will enter a separate judgment in accordance with Federal Rule of Civil Procedure 58 and 42 U.S.C. § 405(g). Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KATHRYN A. C.,
Case No. 1:23-cv-00002-DCN-REP
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.

I. INTRODUCTION
On January 7, 2020, Plaintiff filed an application for a period of disability and
disability insurance benefits, alleging a disability onset date of December 28, 2018.
Plaintiff, a woman in her twenties, has a medical history that includes a spinal disorder,
migraine headaches, obesity, depression, and anxiety.
Plaintiff’s claim was denied in November 2020 and again on reconsideration in June
2021. Plaintiff subsequently requested a hearing in front of an Administrative Law Judge
(“ALJ”), and a video hearing was held by ALJ Stephen Marchioro on December 15, 2021.
The ALJ found that Plaintiff suffered from several severe impairments, but concluded that
these impairments did not, singly or in combination, meet the severity of the listed
impairments in 20 C.F.R. part 404, subpart P, appendix 1. Plaintiff appealed the ALJ’s
decision to the Appeals Council, which denied her request to review. This made the ALJ’s
decision the final decision of the Commissioner of Social Security (“Commissioner”).
With her administrative remedies exhausted, Plaintiff sought this Court’s review of
MEMORANDUM DECISION AND ORDER - 1

the ALJ’s decision. Dkt. 1. The Clerk of the Court randomly assigned the case to United
States Magistrate Judge Raymond E. Patricco. Dkt. 6. Because not all parties consented to
Judge Patricco’s jurisdiction, the case was reassigned to the undersigned. Nevertheless,
consistent with the District of Idaho’s standard practice, the undersigned referred this case
back to Judge Patricco for all matters. Dkt. 10. On August 16, 2023, Judge Patricco issued
a Report and Recommendation (the “Report”) in this matter recommending that: (1) the
decision of the Commissioner be affirmed and (2) this action be dismissed in its entirety,
with prejudice. Dkt. 19, at 12. Pursuant to statute, Judge Patricco gave the parties fourteen
days to file written objections to the Report. Id. at 13; see 28 U.S.C. § 636(b)(1). Plaintiff
filed an Objection (Dkt. 20) and the Commissioner responded (Dkt. 21). The matter is now
ripe for the Court’s review.
For the reasons stated below, the Court accepts and adopts the Report in its entirety.
The Court adds a few words by way of explanation to address Plaintiff’s Objections.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” Where,
as here, a party objects to the report and recommendation, this Court “shall make a de novo
determination of those portions of the report . . . to which objection is made.” Id.
For the Court to uphold the Commissioner’s decision, it must be both supported by
substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v.
Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Findings as to any question of fact, if
supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if
MEMORANDUM DECISION AND ORDER - 2

there is substantial evidence to support the ALJ’s factual decisions, they must be upheld,
even when there is conflicting evidence. See Treichler v. Comm’r of Social Sec. Admin.,
775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a
scintilla, but less than a preponderance, of evidence. Trevizo, 871 F.3d at 674. It “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). With respect to questions of fact, the Court is to review the record as a whole
to decide whether it contains evidence that would allow a person of a reasonable mind to
accept the conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d
at 1051.
Put differently, the Court’s role in this instant case is not to decide whether the ALJ was
correct. The Court’s only role is to determine whether the ALJ’s decision was reasonable
and supported by substantial evidence. Only if the ALJ was unreasonable can the Court
strike down the decision made by the Commissioner.
III. DISCUSSION
In her Objection, Plaintiff raises two points of error. First, she contends that the
ALJ’s decision “fails to point to any explanation as to why the RFC lacks any limitation to
account for Plaintiff’s limitations in concentration, persistence and pace.” Dkt. 20, at 1–2.
Second, Plaintiff argues the ALJ’s failure to properly discuss one proffered medical
opinion constituted prejudicial error. After weighing the evidence, Judge Patricco
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concluded that the ALJ’s RFC findings were consistent with the medical record and that
the corresponding RFC limitation to simple, routine tasks adequately accounted for
Plaintiff’s limitations in concentration, persistence, and pace. He also found that although
the ALJ did err in failing to address the consistency of one doctor’s opinion with the rest
of the medical record, that error was “inconsequential to the ultimate nondisability
determination” and, therefore, harmless. Dkt. 19, at 11–12 (quoting Marsh v. Colvin, 792
F.3d 1170, 1173 (9th Cir. 2015). After a de novo review, the Court agrees and adopts the
Report in its entirety.
A. Adequacy of RFC Limitations Analysis
When assessing a claimant’s RFC, the Social Security Administration has outlined
that “the adjudicator must consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’” Titles II & XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996) at *5
(cleaned up). While an ALJ’s Paragraph B1 mental function analysis itself is not an RFC
assessment, “when an ALJ performs the Paragraph B analysis and indicates the ‘degree of
limitation’ is incorporated into the RFC, this is sufficient to carry the burden imposed by
the Regulations.” Van Houten v. Berryhill, 2019 WL 691200, at *14 (E.D. Cal. Feb. 19,
2019).
Here, the ALJ both indicated that the degree of limitation found in his Paragraph B

1

20 CFR, Part 404, Subpart P, Appendix 1–Listing of Impairments, sets forth four broad functional areas
of mental functioning for evaluating mental disorders. These four areas are known as the “Paragraph B”
criteria.

MEMORANDUM DECISION AND ORDER - 4

analysis was incorporated in his RFC evaluation, and independently considered Plaintiff’s
mental impairments in his RFC evaluation. See Dkt. 12, at 52–60. In his Paragraph B
analysis, the ALJ determined Plaintiff has only a “no more than moderate limitation” in
concentrating, persisting, or maintaining pace. Id. at 53. In support of this determination,
the ALJ noted that Plaintiff is able to independently handle tasks such as personal care and
care for her pets, attending school, traveling, utilizing a computer, and shopping. Id. That
analysis was then expressly incorporated into the ALJ’s RFC determination. Id. at 54 (“The
following residual functional capacity assessment reflects the degree of limitation . . . found
in the ‘paragraph B’ mental function analysis.”). Because the ALJ incorporated his analysis
of the mental health evidence and the degree of limitation found in the Paragraph B analysis
into his RFC determination, the ALJ did not err in reaching his RFC determination. Having
already met his burden, the ALJ went one step further and conducted an even more detailed
consideration of Plaintiff’s mental impairment evidence in reaching the RFC
determination, examining reports from more than ten medical professionals and
consultants who evaluated Campbell. Dkt. 12, at 57–63.
Plaintiff cites Hutton v. Astrue, 491 Fed. Appx. 850 (9th Cir. 2012), in support of
her argument that the ALJ failed to account for her concentration limitations in the RFC
determination. Dkt. 20, at 2–3. In that case, the court found the ALJ erred because the ALJ
categorically excluded the Plaintiff’s PTSD from consideration in the RFC determination
after previously making a finding that the Plaintiff’s PTSD did exist. Hutton, 491 Fed.
Appx. at 851. “Th[at] exclusion was legal error.” Id. at 850. This case is distinguishable.
Here, the ALJ did not categorically exclude any of the Plaintiff’s mental health
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impairments from consideration in his RFC determination; in fact, the ALJ expressly
considered all Plaintiff’s mental limitations, including concentration, persistence, and pace,
in reaching his determination. Dkt. 12, at 57–63. The ALJ provided an extensive factual
basis for his conclusions in a nearly ten-page RFC analysis considering the medical
evidence in the record, and that evidence identified no specific limitations regarding
Plaintiff’s concentration beyond the ALJ’s already-included limitation to simple, routine
tasks. Accordingly, the Court finds that the ALJ’s RFC determination is supported by
substantial evidence.
B. Harmlessness of Medical Opinion Evidence Error
Plaintiff also objects to Judge Patricco’s recommendation on grounds that he
improperly concluded that the ALJ’s failure to address whether Dr. Deschene’s opinion
was consistent with the rest of the record was harmless error.
One piece of medical evidence Plaintiff proffered was a July 2019 evaluation from
Kristen Deschene, M.D. regarding her chronic back pain. After identifying mild paraspinal
tenderness and discomfort, Dr. Deschene recommended Plaintiff take ibuprofen for pain,
Flexeril before bed, and “avoid lifting or strenuous activity until back pain improves.” Dkt.
19, at 9. The ALJ concluded that this opinion was “only partially persuasive” because it
was vague and did not give a “comprehensive function-by-function analysis of
[Campbell’s] limitations.” Id.
An ALJ must articulate how persuasive he finds the medical opinions in a claimant’s
case record. 20 C.F.R. § 404.1520c(b). Factors to be considered in evaluating the
persuasiveness of a medical source’s opinion include supportability, consistency, the
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source’s relationship with the claimant, and any source specialization. 20 CFR §
404.1520c(c). Although an ALJ need not articulate his consideration of all factors used to
assess persuasiveness, he must at a minimum “explain how [he] considered the
supportability and consistency factors for a medical source’s medical opinions.” 20 C.F.R.
§ 404.1520c(b)(2).
As Judge Patricco correctly noted:
The factor of supportability looks inward, evaluating persuasiveness of a medical
opinion as a function of “the objective medical evidence and supporting
explanations presented by a medical source . . . to support his or her medical
opinion(s).” 20 C.F.R. § 416.920c(c)(1). The factor of consistency, on the other
hand, looks outward, measuring persuasiveness in terms of the medical opinion’s
congruence “with the evidence from other medical sources and nonmedical sources
in the claim.” 20 C.F.R. § 416.920c(c)(2).
Dkt. 19, at 10.
Here, the ALJ properly articulated the lack of supportability in Dr. Deschene’s
testimony by finding that testimony vague. See Cruz v. Kijakazi, 2023 WL 4074773, at *4
(E.D. Cal. June 20, 2023) (“[F]indings related to the vagueness of [an] opinion relate to the
supportability of the medical opinion . . . .”). Dr. Deschene’s opinion vaguely
recommended Plaintiff avoid strenuous activity and heavy lifting but did not specifically
identify (1) what constituted strenuous activity, (2) the amount of weight Plaintiff could
safely lift, or (3) for how long such activities should be avoided. Thus, the ALJ adequately
articulated his consideration of supportability in weighing the persuasiveness of Dr.
Deschene’s testimony.
However, as Judge Patricco noted in his recommendation, the ALJ failed to
articulate the consistency of Dr. Deschene’s testimony with the rest of the record. Dkt. 19,
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at 11–12. But error alone is not enough to warrant reversal; that error must also be
prejudicial. Lisa L. R. v. Kijakazi, 2023 WL 356168, at *4 (D. Idaho Jan. 23, 2023).
Here, the ALJ’s error in failing to articulate the consistency of Dr. Deschene’s testimony
with the rest of the medical record was harmless because the ALJ nonetheless incorporated
Dr. Deschene’s recommendations in his RFC determination, which imposed “limitations
to less strenuous physical activity with some additional postural and environmental
limitations.” Dkt. 12, at 56–57. Accordingly, the Court agrees with Judge Patricco’s
recommendation and overrules Plaintiff’s objection on this ground.
IV. CONCLUSION
The Court finds the ALJ provided legitimate reasons, supported by substantial
evidence, for reaching his RFC determination. Furthermore, the ALJ’s error in failing to
articulate the consistency of Dr. Deschene’s opinion with the rest of the medical record
was harmless. Therefore, the Court AFFIRMS the Report, DENIES the Petition for Review
(Dkt. 1), and DISMISSES this action in its entirety, with prejudice.
V. ORDER
NOW, therefore, IT IS HEREBY ORDERED:
1. Plaintiff’s Objections (Dkt. 20) are OVERRULED.
2. The Report and Recommendation entered on August 16, 2023 (Dkt. 19) is
INCORPORATED and ADOPTED in its entirety;
3. The Petition for Review (Dkt. 1) is DENIED.
4. The Commissioner’s decision is AFFIRMED.
5. This action is DISMISSED with prejudice and CLOSED.
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6. The Court will enter a separate judgment in accordance with Federal Rule of
Civil Procedure 58 and 42 U.S.C. § 405(g).

DATED: March 26, 2024
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 9