Bizauskas v. Commissioner of Social Security

Filing 25

REPORT AND RECOMMENDATION that 20 Motion for Reversal and/or Remand be DENIED. FURTHER RECOMMENDED that 22 Cross-Motion to Affirm be GRANTED. Objections to R&R due by 10/10/2017. Signed by Magistrate Judge Cam Ferenbach on 9/26/17. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

KIMBERLY L. BIZAUSKAS,

5

Plaintiff,

6

2:16-cv-01901-GMN-VCF
REPORT & RECOMMENDATION

vs.

7
8
9

NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

10

This matter involves Plaintiff Kimberly Bizauskas’ appeal from the Commissioner’s final decision

11

denying Bizauskas’ social security benefits. Before the Court are Bizauskas’ Motion for Reversal and/or

12
13

Remand (ECF No. 20) and the Commissioner’s Cross-Motion to Affirm (ECF No. 22). For the reasons
stated below, the Court recommends denying Bizauskas’ motion and granting the Commissioner’s motion.

14
15
16

STANDARD OF REVIEW
The Fifth Amendment prohibits the government from depriving persons of property without due

17

process of law. U.S. CONST. amend. V. Social security claimants have a constitutionally protected property

18

interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319 (1976); Gonzalez

19

v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). Where, as here, the Commissioner of Social Security

20

renders a final decision denying a claimant’s benefits, the Social Security Act authorizes the District Court

21

to review the Commissioner’s decision. See 42 U.S.C. § 405(g); see also 28 U.S.C.

22
23
24

§ 636(b) (permitting the District Court to refer matters to a U.S. Magistrate Judge).
The District Court’s review is limited. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)
(“[I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for

25

1

that of the agency.” (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
1
2

2014))). The Court examines the Commissioner’s decision to determine whether (1) the Commissioner

3

applied the correct legal standards and (2) the decision is supported by “substantial evidence.” Batson v.

4

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is defined as

5

“more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971); Andrews v.

6

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). This means such relevant “evidence as a reasonable mind

7

might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197

8

(1938); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).

9
10
11

If the evidence supports more than one interpretation, the Court must uphold the Commissioner’s
interpretation. (See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This means that the
Commissioner’s decision will be upheld if it has any support in the record. See, e.g., Bowling v. Shalala,

12

36 F.3d 431, 434 (5th Cir. 1988) (stating that the court may not reweigh evidence, try the case de novo, or
13
14
15

overturn the Commissioner’s decision if the evidence preponderates against it).

DISCUSSION

16

In this case, the Administrative Law Judge (“ALJ”) followed the five-step sequential evaluation

17

process in 20 C.F.R. § 404.1520. The ALJ concluded Bizauskas did not engage in substantial gainful

18

activity during the relevant timeframe. (ECF No. 15-1 at 711). The ALJ found Bizauskas suffered from

19

medically determinable severe impairments consisting of a history of thyroid tumor, peptic ulcer disease,

20
21

bipolar disorder, and attention deficit hyperactivity disorder, but the impairments did not meet or equal
any listed impairment under 20 C.F.R.. Part 404, Subpart P, Appendix 1. (Id. at 711-712). The ALJ

22

concluded Bizauskas retained the residual functional capacity to perform light work with the following
23

conditions: occasional exposure to fumes, odors, dusts, gas, and poor ventilation; performance limited to
24
25

2

simple, routine, and repetitive tasks; occasional interaction with coworkers, supervisors, and the public;
1
2

and the ability to adapt to routine work changes. (Id. at 713-714).

3

The ALJ posed two hypotheticals to the vocational expert at Bizauskas’ hearing. First, the ALJ

4

asked what work an individual could perform with the limitations listed above. (Id. at 742). The

5

vocational expert testified the individual could perform the work of a packer, routing clerk, or mail sorter.

6

(Id. at 743). The ALJ then asked what work an individual could perform if, in addition to the limitations

7

listed above, the individual would be off-task up to 20% of the time. (Id.) The vocational expert testified

8

“[t]hat alone would eliminate competitive work.” (Id. at 744). In his report, the ALJ accepted the

9

vocational expert’s testimony following the first hypothetical1—that Bizauskas’ residual functional

10

capacity would allow Bizauskas to perform available work. (ECF No. 15-1 at 718-719.) The ALJ found

11

that Bizauskas was not under a disability as defined in the Social Security Act. (Id. at 719).
12

Bizauskas challenges the ALJ’s assessment on a single ground. Bizauskas argues the ALJ failed
13
14
15

to incorporate Dr. Fabella-Hicks’ full opinion into the disability evaluation process. (ECF No. 20 at 6).
Specifically, Bizauskas asserts the ALJ failed to take into account Dr. Fabella-Hicks’ finding that

16

Bizauskas had difficulty completing tasks on a sustained basis when the ALJ used the vocational expert’s

17

findings from the first hypothetical rather than the second hypothetical. (Id. at 7-9). The Commissioner

18

argues the ALJ’s decision is supported by substantial evidence because there were internal inconsistencies

19

in Dr. Fabella-Hicks’ opinion and other medical experts opined Bizauskas did not have substantial

20

problems concentrating. (ECF no. 22 at 4-7).

21
22
23
24
25

1

The ALJ did not mention posing a second hypothetical to the vocational expert in his report.

3

1

I.

Medical Experts’ Opinions Regarding Bizauskas’ Concentration
The ALJ’s report lists five experts that gave opinions specifically regarding Bizauskas’

2
3

concentration, persistence, or pace. Dr. Larson examined Bizauskas in March 2012 and Bizauskas “was

4

assessed to have a sufficient capability to concentrate and carry out complex tasks.” (ECF No. 15-1 at

5

716). Dr. Araza also examined Bizauskas in March 2012 and stated she has “no difficulty with

6

maintaining concentration, persistence, or pace.” (Id. at 714-715). Dr. Cabaluna performed a physical

7

consultative evaluation in April 2013 and noted Bizauskas’ “memory and ability to concentrate were

8

intact.” (Id. at 716). Dr. Roldan reviewed Bizauskas’ medical records in June 2013 and stated she

9

appeared to have “moderate difficulties with maintaining concentration, persistence, or pace.” (Id. at 714).

10

Dr. Fabella-Hicks examined Bizauskas in May 2013. (Id. at 717). Dr. Fabella-Hicks separated

11

her findings into several sections. In the Functional Assessment sections, Dr. Fabella-Hicks stated
12

Bizauskas was “cognitively capable of performing most” complex instructions, but there were “specific
13
14
15

limitations in [Bizauskas’] ability to consistently sustain performance” in these tasks. (Id. at 1361).
Bizauskas “was judged to be capable of performing” detailed and simple instructions, though she “may

16

still have difficulty with consistent and sustained performance.” (Id.) Bizauskas “appeared to show

17

variable concentration and attention” and “needed to give effort to complete tasks,” but “[h]er ability to

18

maintain persistence and pace to carry out specified tasks was sufficient.” (Id. at 1361-1362). In the

19

Prognosis section, Dr. Fabella-Hicks stated Bizauskas “was cognitively capable of performing complex,

20

detailed, and simple tasks. Her ability to complete tasks on a sustained basis would be affected by her

21

mental health symptoms.” (Id. at 1362).

22
23

II.

The ALJ’s Findings Regarding Bizauskas’ Concentration
“When there is conflicting medical evidence, the [ALJ] must determine credibility and resolve the

24

conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (quoting Matney v. Sullivan, 981
25

4

F.2d 1016, 1019 (9th Cir.1992)). “[T]he opinion of an examining doctor, even if contradicted by another
1
2
3

doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence
in the record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995), as amended (Apr. 9, 1996).

4

The Court finds that the ALJ did not disregard any portion of Dr. Fabella-Hicks’ opinion, because

5

Dr. Fabella-Hicks never stated that Bizauskas’ disabilities would significantly interfere with her ability to

6

perform simple tasks.2 Bizauskas’ argument rests on the Prognosis statement that “[h]er ability to

7

complete tasks on a sustained basis would be affected by her mental health symptoms.” (ECF No. 15-1

8

at 1362). However, the Prognosis statement addresses “complex, detailed, and simple tasks” as a

9
10
11

collective group. In addressing these tasks separately in the Functional Assessment sections, Dr. FabellaHicks’ stated there “are” limitations in Bizauskas’ ability to follow complex instructions on a sustained
basis, but Bizauskas only “may” have difficulty with detailed and simple instructions. (Id. at 1361). The

12

ALJ took Dr. Fabella-Hicks’ entire opinion into consideration in finding Bizauskas was limited to
13
14
15

performing “simple, routine, repetitive tasks.” (Id. at 713). In addition, even if the ALJ had improperly
disregarded a portion of Dr. Fabella-Hicks’ opinion, the ALJ’s findings are supported by substantial

16

evidence. Three other examining physicians commented favorably on Bizauskas’ ability to concentrate

17

and carry out tasks, and the ALJ gave specific reasons for the weight given to each medical expert. (Id.

18

at 714-716).

19

///

20

///

21
22

///
///

23
24
Dr. Fabella-Hicks also failed to state that Bizauskas would be off-task for 20% of a workday as presented in the ALJ’s second
hypothetical to the vocational expert. (ECF No. 15-1 at 743).
2

25

5

ACCORDINGLY,
1
2
3
4
5

IT IS RECOMMENDED that Plaintiff Kimberly Bizauskas’ Motion for Reversal and/or Remand
(ECF No. 20) be DENIED.
IT IS FURTHER RECOMMENDED that the Commissioner’s Cross-Motion to Affirm. (ECF No.
22) be GRANTED.

6

IT IS SO RECOMMENDED.

7

DATED this 26th day of September, 2017.

8
9

_________________________

CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

6