Borja v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONNAMARIE D. B., Case No. 20-cv-1943-MMA (DEB)

12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION;

14 KILOLO KIJAKAZI, Commissioner of [Doc. No. 21] Social Security, 15 Defendant. DENYING PLAINTIFF’S MOTION 16 FOR SUMMARY JUDGMENT; 17 [Doc. No. 15] 18 19 AND GRANTING DEFENDANT’S CROSS-MOTION FOR 20 SUMMMARY JUDGMENT 21 [Doc. No. 18] 22 24 On October 1, 2020, Donnamarie D. B. (“Plaintiff”) filed this social security 25 appeal challenging the denial of her application for disability insurance benefits. See 26 Doc. No. 1. The Court referred all matters arising in this social security appeal to the 27 assigned Magistrate Judge, Judge Butcher, for report and recommendation (“R&R”) 28 pursuant to Section 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1. See Doc. No. 8. 1 The parties have filed cross-motions for summary judgment. See Doc. Nos. 15, 18. 2 Judge Butcher issued an R&R recommending the Court deny Plaintiff’s motion for 3 summary judgment and grant Commissioner of Social Security Kilolo Kijakazi’s1 (the 4 “Commissioner”) cross-motion for summary judgment. See Doc. No. 21. Plaintiff filed 5 an objection to the R&R. See Doc. No. 22. Upon due consideration and for the reasons 6 set forth below, the Court OVERRULES Plaintiff’s objection, ADOPTS Judge 7 Butcher’s R&R, GRANTS the Commissioner’s cross-motion for summary judgment, 8 and DENIES Plaintiff’s motion for summary judgment. 9 I. BACKGROUND 10 Seeking judicial review to challenge the denial of her application for disability 11 insurance benefits, Plaintiff filed the present action pursuant to 42 U.S.C. § 405(g). See 12 Doc. No. 1. Plaintiff moved for summary judgment, arguing the Administrative Law 13 Judge’s (“ALJ”) decision was improper because “[t]he ALJ did not give a logical or 14 rational reason for construing the evidence of loss of near acuity as a limitation on 15 reading small print,” Doc. No. 15-1 at 8,2 and the ALJ lacked authority to hear her case 16 because the removal provision in the statute under which the Commissioner was 17 appointed was unconstitutional, see id. at 11–14. The Commissioner filed a cross-motion 18 for summary judgment, arguing the ALJ’s decision was proper because the finding 19 regarding Plaintiff’s vision was “supported by substantial evidence,” Doc. No. 18 at 10, 20 and “the unlawfulness of [a] removal provision . . . does not strip [an official] of the 21 power to undertake the other responsibilities of his office,” id. at 12 (citing Collins v. 22 Yellen, 141 S. Ct. 1761, 1787–89, 1788 n.23 (2021)). 23 24 25 1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Therefore, pursuant to Federal Rule of 26 Civil Procedure 25(d), Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. No further action needs to be taken, pursuant to the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. 27 § 405(g).

28 1 Judge Butcher issued an R&R on the parties’ cross-motions for summary 2 judgment, in which he recommends denying Plaintiff’s motion for summary judgment 3 and granting the Commissioner’s cross-motion for summary judgment. See Doc. No. 21 4 at 1. Judge Butcher found that the ALJ properly considered the medical opinions in the 5 Administrative Record (“AR”), see Doc. No. 16, and the ALJ’s residual function capacity 6 (“RFC”) regarding Plaintiff’s vision was supported by substantial evidence. See id. at 4– 7 6. Judge Butcher also found the removal provision is severable and has no impact on 8 Plaintiff’s case unless she demonstrates actual harm, which she has not. See id. at 4. 9 Plaintiff now objects to Judge Butcher’s R&R. See Doc. No. 22. 10 II. LEGAL STANDARD 11 The duties of the district court in connection with a magistrate judge’s report and 12 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 13 28 U.S.C. § 636(b)(1). Where the parties object to an R&R, “[a] judge of the [district] 14 court shall make a de novo determination of those portions of the [R&R] to which 15 objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149–50 16 (1985). A district judge may “accept, reject, or modify, in whole or in part, the findings 17 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also 18 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). 19 III. DISCUSSION 20 Plaintiff does not object to Judge Butcher’s finding regarding the constitutionality 21 of the removal provision. Plaintiff only objects to Judge Butcher’s R&R on the grounds 22 that “the ALJ did not reasonably explain why he selected a limitation against reading 23 small print as opposed to the vocationally relevant description of a vision impairment— 24 near acuity.” See Doc. No. 22 at 2. Plaintiff argues that the medical and vocational 25 testimony in the AR shows that Plaintiff lacks near acuity (the ability to see objects 26 within twenty inches), obligating the ALJ to explain their less-restrictive finding of 27 inability to read small print. See id. at 3–4. 28 1 “[A]n ALJ ‘need not discuss all evidence presented to her. Rather, she must 2 explain why significant probative evidence has been rejected.’” Kilpatrick v. Kijakazi, 35 3 F.4th 1187, 1193 (9th Cir. 2022) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 4 1393, 1394–95 (9th Cir. 1984)); see also Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 5 2008) (holding an ALJ must provide “specific and legitimate reasons” for rejecting the 6 opinions of an expert witness or physician.) (quoting Lester v. Chater, 81 F.3d 821 (9th 7 Cir. 1995) (superseded by statute on other grounds) (internal citation omitted)); Social 8 Security Ruling 96–8p (“[i]f the RFC assessment conflicts with an opinion from a 9 medical source, the adjudicator must explain why the opinion was not adopted”). 10 Plaintiff asserts that the ALJ’s RFC regarding Plaintiff’s vision is inconsistent with 11 physician testimony. See Doc. No. 22 at 2–3. However, as Judge Butcher correctly 12 concluded, the RFC does not conflict with physician testimony. See Doc. No. 21 at 6. 13 Dr. Chu rated Plaintiff’s near acuity as “Unlimited.” Doc. No 16-3 at 28. Dr. Gaeta 14 stated “[Plaintiff] does have retinopathy, but she sees, you know, her vision is adequate. 15 It may not be good for close vision, but it’s good for overall vision” and did not mention 16 near acuity. Doc. No. 16-2 at 61. In fact, the AR shows Plaintiff’s blurry vision 17 specifically impacts her ability to read small print without noting any issues with her near 18 acuity. See, e.g., Doc. Nos. 16-14 at 15 (stating Plaintiff suffers blurred vision while 19 reading small print and that Plaintiff “complains of blurred vision OU specially [sic] for 20 small print on books or computer” but not mentioning objects or near acuity); 16-2 at 50 21 (answering the ALJ’s question about blurry vision and difficulty reading small print in 22 the affirmative but not noting any issues seeing objects up close). Therefore, the record 23 reveals no probative evidence of a lack of near acuity in the testimony. As such, the ALJ 24 had no obligation to explain why he adopted a limitation that was supported by testimony 25 in the AR—difficulty reading small print—but did not adopt a limitation that was 26 unsupported by testimony in the AR—lack of near acuity. 27 Plaintiff also argues that the ALJ’s RFC regarding Plaintiff’s vision is inconsistent 28 with the vocational expert’s testimony. See Doc. No. 22 at 3. Plaintiff essentially argues 1 that the vocational testimony showed that the inability to read small print is similar 2 enough to a lack of near acuity that in not adopting both limitations the ALJ’s finding 3 was contradictory to the expert testimony, and the ALJ, therefore, needed to provide an 4 explanation. See id.; Doc. No. 15-1 at 8–10. However, the testimony of the vocational 5 expert demonstrates that the inability to read small print is distinct from a lack of near 6 acuity. The vocational expert testified that a hypothetical person with the inability to see 7 small print could work as an assembler or solderer, whereas a hypothetical person lacking 8 near acuity could not work as an assembler or solderer. Doc. No. 16-2 at 76–79. Given 9 this distinction, the ALJ did not reject probative evidence or contradict the vocational 10 expert’s testimony by adopting a small print limitation but not a near acuity limitation. 11 Accordingly, the ALJ had no obligation to spell out his reasoning for adopting the former 12 but not the latter. 13 The critical deficiency in Plaintiff’s argument is illustrated by the ALJ’s question 14 to Plaintiff’s attorney during the vocational expert’s examination. When Plaintiff’s 15 attorney posed the near acuity hypothetical to the vocational expert, the ALJ asked 16 Plaintiff’s attorney to identify where in the record Plaintiff’s near acuity issues were 17 established. See Doc. No. 16-2 at 80. Plaintiff’s attorney was unable to point to any 18 evidence in the AR beyond “moderate blurred vision.” See id. The inability to point to 19 specific evidence of near acuity issues in the record demonstrates why the ALJ did not 20 need to provide any explanation regarding the absence of a near acuity limitation in the 21 RFC: a near acuity limitation was not supported by any evidence in the record. 22 In sum, the ALJ did not need to provide an explanation for not adopting a lack of 23 near acuity limitation into the RFC because evidence of lack of near acuity was not in the 24 record and the RFC did not contradict the medical or vocational experts’ opinions. 25 IV. CONCLUSION 26 For the foregoing reasons, the Court OVERRULES Plaintiff’s objection, 27 ADOPTS Judge Butcher’s R&R in its entirety, DENIES Plaintiff’s motion for summary 28 judgment, and GRANTS Commissioner’s cross-motion for summary judgment. The 1 || Court further DIRECTS the Clerk of Court to enter judgment accordingly and close the 2 || case. 3 IT IS SO ORDERED. 4 || Dated: June 28, 2022 5 Miu □□□ 6 HON. MICHAEL M. ANELLO 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28