(SS) Contrashas Smith v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIERRA CONTRASHAS SMITH, No. 2:19-cv-1312 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge erred at step two of the sequential 21 evaluation and that the ALJ’s residual functional capacity determination was not supported by 22 substantial evidence. 23 //// 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings consistent with this order. 4 PROCEDURAL BACKGROUND 5 In August and September of 2016, plaintiff filed applications for Disability Insurance 6 Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental 7 Security Income (“SSI”) under Title XVI of the Act, respectively, alleging disability beginning on 8 November 12, 2015. (Transcript (“Tr.”) at 28, 197-213.) Plaintiff’s alleged impairments 9 included cerebral palsy and chronic back pain. (Id. at 248.) Plaintiff’s applications were denied 10 initially, (id. at 120-23), and upon reconsideration. (Id. at 129-33.) 11 Plaintiff requested an administrative hearing and a hearing was held before an 12 Administrative Law Judge (“ALJ”) on December 8, 2017. (Id. at 47-91.) Plaintiff was 13 represented by an attorney and testified at the administrative hearing. (Id. at 47-54.) In a 14 decision issued on July 20, 2018, the ALJ found that plaintiff was not disabled. (Id. at 41.) The 15 ALJ entered the following findings: 16 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019. 17 2. The claimant has not engaged in substantial gainful activity 18 since November 12, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 19 3. The claimant has the following severe impairments: cerebral 20 palsy, scoliosis, obesity, facet arthoropathy (20 CFR 404.1520(c) and 416.920(c)). 21 4. The claimant does not have an impairment or combination of 22 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 23 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 24 5. After careful consideration of the entire record, I find that the 25 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can sit, 26 stand or walk up to six hours. She can frequently climb ramps or stairs and never climb ladders, ropes or scaffolds. She can lift and/or 27 carry up to 25 pounds occasionally, 10 pounds frequently. She can 28 //// 1 occasionally bend, stoop, kneel, crouch or crawl. She occasionally (sic) push or pull with the left non dominant upper extremity and 2 frequently finger and handle with the left upper extremity. 3 6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965). 4 7. The claimant was born [in] 1990 and was 24 years old, which is 5 defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 6 8. The claimant has at least a high school education and is able to 7 communicate in English (20 CFR 404.1564 and 416.964). 8 9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.964). 9 10. Considering the claimant’s age, education, work experience, and 10 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 11 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 12 11. The claimant has not been under a disability, as defined in the Social Security Act, from November 12, 2015, through the date of 13 this decision (20 CFR 404.1520(g) and 416.920(g)). 14 (Id. at 31-41.) 15 On May 8, 2019, the Appeals Council denied plaintiff’s request for review of the ALJ’s 16 July 20, 2018 decision. (Id. at 12-17.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 17 405(g) by filing the complaint in this action on July 12, 2019. (ECF. No. 1.) 18 LEGAL STANDARD 19 “The district court reviews the Commissioner’s final decision for substantial evidence, 20 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 21 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 22 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 23 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 24 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 25 “[A] reviewing court must consider the entire record as a whole and may not affirm 26 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 27 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 28 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 1 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 2 1072, 1075 (9th Cir. 2002). 3 A five-step evaluation process is used to determine whether a claimant is disabled. 20 4 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 5 process has been summarized as follows: 6 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 7 Step two: Does the claimant have a “severe” impairment? If so, 8 proceed to step three. If not, then a finding of not disabled is appropriate. 9 Step three: Does the claimant’s impairment or combination of 10 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 11 disabled. If not, proceed to step four. 12 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 13 Step five: Does the claimant have the residual functional capacity to 14 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 15 16 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 17 The claimant bears the burden of proof in the first four steps of the sequential evaluation 18 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 19 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 20 1098 (9th Cir. 1999). 21 APPLICATION 22 Plaintiff’s pending motion asserts the following two principal claims: (1) the ALJ erred at 23 step two of the sequential evaluation; and (2) the ALJ erred at step five of the sequential 24 evaluation.3 (Pl.’s MSJ (ECF No. 17) at 9-21.4) 25 3 Although plaintiff’s motion asserts four claims of error, three of those claims are that the ALJ 26 erred at step two of the sequential evaluation. The court, therefore, has combined the discussion of those claims into a single claim. 27 4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 1 I. Step Two Error 2 Plaintiff argues that the ALJ erred at step two of the sequential evaluation by failing to 3 find that plaintiff’s cognitive and intellectual impairments were severe. (Id. at 13-20.) At step 4 two of the sequential evaluation, the ALJ must determine if the claimant has a medically severe 5 impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 6 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations provide that “[a]n 7 impairment or combination of impairments is not severe if it does not significantly limit [the 8 claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a) & 9 416.921(a). Basic work activities are “the abilities and aptitudes necessary to do most jobs,” and 10 those abilities and aptitudes include: (1) physical functions such as walking, standing, sitting, 11 lifting, and carrying; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying 12 out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to 13 supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine 14 work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b). 15 The Supreme Court has recognized that the Commissioner’s “severity regulation increases 16 the efficiency and reliability of the evaluation process by identifying at an early stage those 17 claimants whose medical impairments are so slight that it is unlikely they would be found to be 18 disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S. 19 at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158 20 (O’Connor, J., concurring). “An impairment or combination of impairments can be found not 21 severe only if the evidence establishes a slight abnormality that has no more than a minimal effect 22 on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and 23 citation omitted). 24 “[A]n ALJ may find that a claimant lacks a medically severe impairment or combination 25 of impairments only when his conclusion is ‘clearly established by medical evidence.’” Webb v. 26 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 85-28); see 27 also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to satisfy step two 28 burden where “none of the medical opinions included a finding of impairment, a diagnosis, or 1 objective test results”). “Step two, then, is ‘a de minimis screening device [used] to dispose of 2 groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); see also 3 Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing this “de minimis 4 standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13 (N.D. Cal. 5 Feb.11, 2008) (describing claimant’s burden at step two as “low”). 6 Here, in relevant part, the ALJ found as follows: 7 While the claimant did not allege a mental impairment when she filed her application, she reported cognitive issues and depression in her 8 Function Report – Adult, and her attorney submitted evidence indicating that she was in special education while in high school. The 9 evidence indicates that a November 5, 2010 individualized education program noted that she had a specific learning disability due to 10 auditory processing difficulty in language arts and math. In October, 1995, she was in special education only 10% of the time. While she 11 was in special education during school, there is insufficient evidence of current mental impairment. 12 13 (Tr. at 32.) 14 However, the record contains considerably more evidence with respect to plaintiff’s 15 cognitive and intellectual impairments than was recounted by the ALJ. A November 22, 1999 16 Educational Evaluation Report found that plaintiff’s “academic skills appear to be two years 17 below grade level in all areas.” (Id. at 332.) A February 28, 2003 Psychoeducational Three-Year 18 Evaluation—completed when plaintiff was in the sixth grade—noted that plaintiff, “has received 19 special education services since preschool[.]” (Id. at 333.) That evaluation found that plaintiff’s 20 “cognitive abilities” measured “within the Low range.” (Id. at 337.) 21 A March 31, 2009, Team Evaluation Review Report—when plaintiff was then a senior in 22 high school and 19 years old5—stated, “Sierra has always demonstrated difficulties in the English 23 language area involving reading comprehension and written language and these weakness also 24 have manifested in her math reasoning area. She has received modified and functional 25 curriculum in these areas all 4 years she has been in high school.” (Id. at 370.) That report found 26 that because of plaintiff’s “determination” she may “learn compensation skills for the disabilities 27 that might hinder her,” but found that plaintiff “would benefit from the continued support of some 28 1 study skills and accommodation[.]” (Id. at 372.) And, at the December 8, 2017 hearing, plaintiff 2 testified that in 2017 the California Department of Rehabilitation arranged for plaintiff to work 3 with a company designed “to help with people with disabilities.” (Id. at 62.) 4 As noted above, the ALJ’s conclusion that the claimant lacks a medically severe 5 impairment or combination of impairments is valid only when that conclusion is “clearly 6 established by medical evidence.” Webb, 433 F.3d at 687. On this record, the court cannot say 7 that it was clearly established by the medical evidence that plaintiff’s cognitive and intellectual 8 impairments were not severe impairments during the period at issue. See Ortiz v. Commissioner 9 of Social Sec., 425 Fed. Appx. 653, 655 (9th Cir. 2011) (“This is not the total absence of 10 objective evidence of severe medical impairment that would permit us to affirm a finding of no 11 disability at step two.”); Webb, 433 F.3d at 687 (“Although the medical record paints an 12 incomplete picture of Webb’s overall health during the relevant period, it includes evidence of 13 problems sufficient to pass the de minimis threshold of step two.”); Russell v. Colvin, 9 14 F.Supp.3d 1168, 1186-87 (D. Or. 2014) (“On review, the court must determine whether the ALJ 15 had substantial evidence to find that the medical evidence clearly established that Ms. Russell did 16 not have a medically severe impairment or combination of impairments.”); cf. Ukolov, 420 F.3d 17 at 1006 (“Because none of the medical opinions included a finding of impairment, a diagnosis, or 18 objective test results, Ukolov failed to meet his burden of establishing disability.”). 19 Nor can the court find the ALJ’s errors harmless. An error is harmless only if it is 20 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r, Soc. 21 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina v. Astrue, 674 F.3d 1104, 22 1115 (9th Cir. 2012) (error harmless if “there remains substantial evidence supporting the ALJ’s 23 decision and the error does not negate the validity of the ALJ’s ultimate conclusion.”). An ALJ’s 24 failure to consider an impairment “severe” at step two is harmless if the ALJ considers all 25 impairments—regardless of severity—in the subsequent steps of the sequential analysis. See 26 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding step two error harmless as the ALJ 27 specifically discussed plaintiff’s bursitis and its effects when identifying the basis for limitations 28 //// 1 in plaintiff’s RFC). Here, the ALJ did not consider plaintiff’s cognitive and intellectual 2 impairments in the subsequent steps of the sequential evaluation. 3 Accordingly, the court finds that plaintiff is entitled to summary judgment on the claim 4 that the ALJ erred at step two of the sequential evaluation by finding that plaintiff’s cognitive and 5 intellectual impairments were not severe impairments. 6 II. Step Five Error 7 Plaintiff also argues that the ALJ failed to satisfy the burden of establishing that there is 8 work plaintiff can perform because the ALJ’s hypothetical question to the Vocational Expert was 9 incomplete. (Pl.’s MSJ (ECF No. 17) at 21-22.) At step five of the sequential evaluation, “the 10 Commissioner has the burden ‘to identify specific jobs existing in substantial numbers in the 11 national economy that a claimant can perform despite his identified limitations.’” Zavalin v. 12 Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 13 Cir. 1995)) (alterations omitted). The ALJ can meet this burden by either taking the testimony of 14 a Vocational Expert (“VE”) or by referring to the grids. See Lounsburry v. Barnhart, 468 F.3d 15 1111, 1114-15 (9th Cir. 2006). Here, the ALJ relied on the testimony of a VE. (Tr. at 41.) 16 However, while an ALJ may pose a range of hypothetical questions to a VE based on 17 alternate interpretations of the evidence, the hypothetical question that ultimately serves as the 18 basis for the ALJ’s determination, i.e., the hypothetical question that is predicated on the ALJ’s 19 final residual functional capacity assessment, must account for all of the limitations and 20 restrictions of the particular claimant. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 21 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the claimant’s limitations, then 22 the expert’s testimony has no evidentiary value to support a finding that the claimant can perform 23 jobs in the national economy.” Id. (citation and quotation marks omitted); see also Taylor v. 24 Commissioner of Social Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (“Because neither the 25 hypothetical nor the answer properly set forth all of Taylor’s impairments, the vocational expert’s 26 testimony cannot constitute substantial evidence to support the ALJ’s findings.”). 27 Here, because the ALJ erroneously found that plaintiff’s cognitive and intellectual 28 impairments were not severe, the ALJ’s hypothetical question to the VE did not account for those 1 impairments. (Tr. at 81-84.) Accordingly, plaintiff is also entitled to summary judgment on this 2 claim. 3 CONCLUSION 4 With error established, the court has the discretion to remand or reverse and award 5 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 6 under the “credit-as-true” rule for an award of benefits where: 7 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 8 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 9 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 10 11 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 12 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 13 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 14 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 15 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 16 proceedings would serve no useful purpose, it may not remand with a direction to provide 17 benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 18 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the 19 proper approach is to remand the case to the agency.”). 20 Here, further proceedings would be useful. Specifically, the ALJ should correct the error 21 at step two of the sequential evaluation addressed above and proceed with the sequential 22 evaluation. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for summary judgment (ECF No. 17) is granted; 25 2. Defendant’s cross-motion for summary judgment (ECF No. 20) is denied; 26 //// 27 //// 28 //// wOAOe 2: □□ VV □□□ LOOP □□□ IO OT EN PT Aye AV VI LY 1 3. The Commissioner’s decision is reversed; and 2 4. This matter is remanded for further proceedings consistent with this order. 3 4 Dated: September 17, 2020 6 Mi BARNES 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DLB:6 92 || DB\orders\orders.soc sec\smith1312.ord 23 24 25 26 27 28 10