Gray v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maryann Jane Gray, No. CV-22-00530-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for disability insurance benefits 16 under Title II of the Social Security Act (“the Act”) by Defendant, the Commissioner of 17 the Social Security Administration (“Commissioner” or “Defendant”). Plaintiff filed a 18 Complaint seeking judicial review of that denial (Doc. 1), and this Court now addresses 19 Plaintiff’s Opening Brief (Doc. 16, Pl. Br.), Defendant’s Answering Brief (Doc. 17, Def. 20 Br.), and Plaintiff’s Reply (Doc. 18, Reply). Having reviewed the briefs and Administrative 21 Record (Doc. 15, AR.), the Court now reverses the Administrative Law Judge’s (“ALJ”) 22 unfavorable decision and remands for further proceedings consistent with this opinion. 23 I. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 24 To determine whether a claimant is disabled for purposes of the Act, the ALJ 25 follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the 26 burden of proof at the first four steps, but the burden shifts to the Commissioner at step 27 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 28 determines whether the claimant is engaging in substantial, gainful work activity. 20 C.F.R. 1 § 404.1520(a)(4)(i). If the claimant is engaged in substantial, gainful work, she is not 2 disabled. Id. If she is not, the analysis proceeds to step two, where the ALJ determines 3 whether the claimant has a “severe” medically determinable physical or mental 4 impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does not, she is not disabled. 5 Id. If she does, the analysis proceeds to step three, where the ALJ considers whether the 6 claimant’s impairment or combination of impairments meets or is medically equivalent to 7 an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. 8 § 404.1520(a)(4)(iii). If the impairment or combination meets or equals a listing, the 9 claimant is disabled. Id. If not, the ALJ assesses the claimant’s residual functional capacity 10 (“RFC”) and proceeds to step four, where she determines whether the claimant is still 11 capable of performing her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the 12 claimant can perform her past relevant work, she is not disabled. Id. If she cannot, the 13 analysis proceeds to the fifth and final step, where the ALJ determines if the claimant can 14 perform any other work in the national economy based on her RFC, age, education, and 15 work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant cannot, she is disabled. Id. 16 This Court may set aside the Commissioner's disability determination only if the 17 determination is not supported by substantial evidence or is based on legal error. Orn v. 18 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citations omitted). “Substantial evidence is more 19 than a mere scintilla but less than a preponderance. It is such relevant evidence as a 20 reasonable mind might accept as adequate to support a conclusion.” Id. (quotations and 21 citations omitted). To determine whether substantial evidence supports a conclusion, the 22 court “must consider the entire record as a whole and may not affirm simply by isolating a 23 specific quantum of supporting evidence.” Id. (quotations and citations omitted). As a 24 general rule, “[w]here the evidence is susceptible to more than one rational interpretation, 25 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 26 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 27 II. PROCEDURAL HISTORY 28 Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and 1 Supplemental Security Income (“SSI”) in June and July 2019 alleging disability beginning 2 in January 2014. (AR. at 17.) Plaintiff alleged disability resulting from asthma, 3 hypertension, and rheumatoid arthritis. (AR. at 204.) Notably, she also underwent bilateral 4 knee replacements in March 2018. (AR. at 559.) In December 2019, a disability examiner 5 determined Plaintiff was disabled effective June 5, 2019, and awarded Plaintiff’s SSI claim. 6 (AR. at 69.) The examiner adopted the conclusions of a medical consultant who opined 7 Plaintiff was limited to sedentary work, and thus, was unable to perform her past relevant 8 work. (AR. at 66-68.) The examiner concluded Plaintiff had no transferable skills to other 9 work and applied Medical-Vocational Rule 201.06 to conclude Plaintiff was disabled. (AR. 10 at 68-69.) Regarding Plaintiff’s DIB claim, this same examiner asserted there was 11 insufficient evidence to conclude Plaintiff was disabled before December 31, 2018, her 12 date last insured (“DLI”).1 (AR. at 79.) This finding was upheld on reconsideration of 13 Plaintiff’s claim (AR. at 91-92), and Plaintiff timely requested a hearing with an ALJ (AR. 14 at 110-11). 15 On January 25, 2021, ALJ Leslie Perry-Dowdell conducted a telephonic hearing 16 during which the claimant and a vocational expert testified. (AR. at 32-58.) The purpose 17 of the hearing was to determine Plaintiff’s eligibility for DIB. (AR. at 36.) On March 1, 18 2021, the ALJ issued an unfavorable decision determining Plaintiff had no severe 19 impairments prior to her December 31, 2018 DLI. (AR. at 17-29.) The Appeals Council 20 declined review in a letter dated February 11, 2022 (AR. at 1-3), and Plaintiff filed the 21 complaint initiating this civil action in April 2022. (Doc. 1.) 22 III. DISCUSSION 23 Plaintiff raises a single issue on appeal: whether the ALJ’s conclusion that Plaintiff 24 had no severe impairments before her DLI is “contrary to law and not supported by 25 substantial evidence.” (Pl. Br. at 1.) To be found disabled, a claimant must have a severe 26 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). A severe 27 impairment “significantly limits [the claimant’s] physical or mental ability to do basic work 28 1 To qualify for DIB, Plaintiff must prove she became disabled on or before her DLI. Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017). 1 activities . . . .” Id. § 404.1520(c). Basic work activities include standing, walking, lifting, 2 carrying, pushing, pulling, understanding and carrying out simple instructions, responding 3 appropriately to others in a work environment, and using judgment. Social Security Ruling 4 (“SSR”) 85-28, 1985 WL 56856, at *3 (S.S.A. 1985). “An impairment or combination of 5 impairments is found ‘not severe’ and a finding of ‘not disabled’ is made at [step two] 6 when medical evidence establishes only a slight abnormality or a combination of slight 7 abnormalities which would have no more than a minimal effect on an individual’s ability 8 to work . . . .” Id. at *3. “[T]he step-two inquiry is a de minimis screening device to dispose 9 of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen 10 v. Yuckert, 482 U.S. 137, 153–54 (1987)). “[I]f an adjudicator is unable to determine clearly 11 the effect of an impairment or combination of impairments on [the claimant’s] ability to do 12 basic work activities, the sequential evaluation should not end with the not severe 13 evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting SSR 85- 14 28)). Consequently, “an ALJ may find that a claimant lacks a medically severe impairment 15 or combination of impairments only when his conclusion is ‘clearly established by medical 16 evidence.’” Id. (quoting SSR 85-28). “Thus, applying our normal standard of review to the 17 requirements of step two, [the Court] must determine whether the ALJ had substantial 18 evidence to find that the medical evidence clearly established that [Plaintiff] did not have 19 a medically severe impairment or combination of impairments.” Id. (citations omitted); 20 Young v. Colvin, No. CV-16-02264-PHX-DGC, 2017 WL 677167, at *4 (D. Ariz. Feb. 21, 21 2017) (“The Court[ ]concludes that the holding of Webb[] . . . requires the Court to reverse 22 if objective evidence suggests that Plaintiff’s impairments are more than de minimis.”) 23 Here, this must also be established on or before Plaintiff’s December 31, 2018 DLI. 24 Wellington, 878 F.3d at 872. 25 In the decision, the ALJ found that, despite bilateral knee replacements in March 26 2018, Plaintiff’s knee impairments were not severe because her condition improved within 27 twelve months. (AR. at 21-22.)2 The ALJ cited treatment notes from June 2018, where 28 2 The Plaintiff’s impairments must last, or be expected to last, for at least 12 consecutive months. 20 C.F.R. § 404.1509. 1 Plaintiff reported walking two miles per day while using a cane, and from October 2018, 2 where Plaintiff reported feeling better, ambulating without a cane, and performing her 3 normal daily activities. (AR. at 22.) The ALJ found Plaintiff’s other conditions also 4 minimally affected her functioning. (AR. at 22-23.) Regarding Plaintiff’s asthma, for 5 instance, the ALJ cited normal respiratory exams from mid-2018, Plaintiff’s own reports 6 of no shortness of breath from that period, and her denial of symptoms despite chest x-rays 7 showing fibrosis and bronchitis, among other findings. (AR. at 22.) The ALJ also noted 8 Plaintiff’s testimony that she continued to ride her bike every other day. (AR. at 23.) 9 Despite Plaintiff’s improvements and occasional denial of symptoms, substantial 10 evidence does not support the conclusion that non-severity is clearly established before 11 Plaintiff’s DLI. Webb, 433 F.3d at 687. When Plaintiff presented for diagnostic imaging of 12 her knees in November 2017, x-rays revealed “[m]oderate degenerative osteoarthritic 13 changes bilaterally.” (AR. at 452.) When she presented to her orthopedist a few months 14 later, she complained of “deep” and “constant” pain in her left knee with gradual onset 15 over the course of one year. (AR. at 389.) After reviewing her x-rays, Plaintiff’s provider 16 noted bilateral osteoarthritis with “obliteration of the mediocre ordinance in large 17 osteophytes.” (AR. at 390.) Her testimony at the hearing suggested her knees were a 18 chronic issue well before her March 2018 knee replacement surgeries. (AR. at 38.) Plaintiff 19 argues persuasively that degeneration occurs over time. (Pl. Br. at 12.) Defendant is correct 20 that subjective statements regarding symptoms cannot alone establish disability (Def. Br. 21 at 10), but here, there is diagnostic imaging, clinical evidence, and a course of treatment 22 corroborating Plaintiff’s issues over a period of at least 12 consecutive months. 23 Regarding her pulmonary condition, diagnostic imaging from late 2018 and early 24 2019 showed progressing pulmonary issues with some findings consistent with pneumonia, 25 chronic fibrosis, and bronchitis. (AR. at 546, 548, 575, 578.) Spirometry testing from 26 October 2018 showed Plaintiff had a lung age of greater than 84 years. (AR. at 551.) She 27 reported her asthma was “controlled” in January 2019 (AR. at 546), but in March 2019, 28 Plaintiff reported during a pulmonology visit that she was unable to walk distances greater 1 than 25 yards without stopping or resting, and that she could not perform the tasks of her 2 bus assistant job without rest breaks. (AR. at 531.)3 Her provider documented spirometry 3 test results showing “fixed airway restriction due to long term asthma that has not 4 responded to treatment.” (AR. at 532.) At her hearing, she testified she uses nebulizer 5 treatments two-to-three times per day (which is consistent with her usage in late 2018 (AR. 6 at 550)), and that perfumes can exacerbate her respiratory symptoms. (AR. at 47.)4 Later 7 pulmonology reports show Plaintiff’s symptoms persisted into 2020. (AR. at 628-29, 634- 8 35, 643.) 9 Plaintiff argues persuasively that the prior administrative medical findings—upon 10 which the ALJ relied—based their conclusions on a finding of insufficient evidence prior 11 to the DLI. (Pl. Br. at 13, citing AR. at 80-81, 91-92.) The ALJ cited their opinions to 12 support the proposition “that the claimant did not have a severe impairment lasting for at 13 least 12 consecutive months through her date last insured[,]” but the ALJ apparently 14 overlooked the ostensible basis for this conclusion. (AR. at 23.) Importantly, if the effect 15 of an impairment or combination of impairments is unclear, the sequential evaluation 16 should continue beyond step two. Webb, 433 F.3d at 687. This did not happen here. The 17 ALJ also had a duty to develop the record if she believed the record was “inadequate to 18 allow for proper evaluation of the evidence[]” for the pre-DLI period. Ford v. Saul, 950 19 F.3d 1141, 1156 (9th Cir. 2020) (quoting Mayes v. Massanari, 276 F.3d 453, 459–60 (9th 20 Cir. 2001)).5 21 3 Whether this job amounts to substantial, gainful work activity is not at issue here. 22 4 The Court rejects Defendant’s argument that Plaintiff waived the issue with respect to her 23 asthma. (Def. Br. at 12.) It is clear from Plaintiff’s Opening Brief that the issue is whether “Plaintiff had more than minimal physical limitations as a result of her medically 24 determinable impairments . . . .” (Pl. Br. at 9, emphasis added.) Plaintiff specifically cited her history of pulmonary treatment to refute the ALJ’s conclusion that no severe 25 impairments existed prior to the DLI. (Pl. Br. at 10.) 5 The Court finds it need not address the assessment of Plaintiff’s treating physician, Dr. 26 Theresa Heatley. (AR. at 661-64.) In her Opening, Plaintiff argues the ALJ erred by failing to develop the record with respect to the bases for Dr. Heatley’s conclusions. (Pl. Br. at 27 14.) Defendant argues Plaintiff forfeited the issue. (Def. Br. at 16-17.) The Court finds that, Dr. Heatley’s assessment notwithstanding, the ALJ’s step two determination is not 28 supported. Moreover, remand will provide additional opportunity to develop the record regarding the bases for Dr. Heatley’s opinions. 1 While there is evidence to support the conclusion Plaintiff’s overall condition was 2 improved or stable prior to the DLI, Plaintiff’s DIB claim is not “groundless,” Smolen, 80 3 F.3d at 1290, as evidenced by the award of her SSI claim effective six months after her 4 DLI. (AR. at 69.) The Commissioner’s established disability onset date appears to 5 correspond only to Plaintiff’s SSI filing date, and not to any particular medical event. (AR. 6 at 69.) Nowhere in the record does the Commissioner adequately explain why a disabling 7 RFC is appropriate for Plaintiff’s SSI filing date, but inappropriate for the period she was 8 insured. SSR 18-01p, 2018 WL 4945639, at *5 (S.S.A. Oct. 2, 2018). (“The date that the 9 claimant first met the statutory definition of disability must be supported by the medical 10 and other evidence and be consistent with the nature of the impairment(s).”) (footnote 11 omitted). Plaintiff notes in her Reply, “Between December 31, 2018 [, her DLI,] and June 12 2019 [, her established onset date,] no yet undiscovered medical condition emerged or 13 traumatic event such as a heart attack occurred, and no big rock fell out of the sky and 14 landed on Plaintiff’s head.” (Reply at 2.) Yet, between these two dates, without any 15 corresponding medical event or explanation from the Commissioner, Plaintiff went from 16 having no severe impairments to an RFC limiting her to sedentary work. (AR. at 66-69, 17 79-81.) 18 This problem is evident from the prior administrative medical findings upon which 19 the SSI award was based. The initial consulting physician’s RFC, which led to the 20 conclusion Plaintiff was disabled under the Medical-Vocational rules, was based upon 21 “[k]nee pain [status post] knee replacements doing good, [left] hip pain, obesity, [and] 22 asthma[.]” (AR. at 66.) The environmental limitations were based upon Plaintiff’s 23 “[history] of asthma.” (AR. at 67.) That same consultant provided no rationale for 24 concluding the same evidence supporting a sedentary RFC was insufficient to determine 25 the RFC for the period six months earlier. (AR. at 80.) The consultant summarily adopted 26 the preliminary opinion of the disability examiner, who concluded without explanation that 27 there was insufficient evidence to determine Plaintiff’s DIB claim. (AR. at 79.) The ALJ’s 28 1 || step two determination—which relies substantially upon these unexplained conclusions— □□ is thus not supported by substantial evidence. 3 IT IS THEREFORE ORDERED reversing the March 1, 2021 decision of the Administrative Law Judge (AR. at 17-29), and remanding for further proceedings || consistent with this opinion.® At the remand hearing, the ALJ should evaluate □□□□□□□□□□□ || DIB claim beyond step two. 7 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 8 || consistent with this Order and to close this case. 9 Dated this 2nd day of May, 2023. 10 11 12 , {Z, 13 _- {UO 14 Used States Dictrid Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at itt does not argue that a remand for payment of benefits is appropriate here. (PI. Br. -8-