(SS) Hoffmann 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 DENISE HOFFMAN, No. 2:18-cv-1609-KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT 13 v. (ECF Nos. 17, 20) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Title II disability insurance benefits.1 In her summary judgment 19 motion, Plaintiff primarily contends the Administrative Law Judge (“ALJ”) erred in weighing 20 medical evidence and testimony regarding Plaintiff’s mental impairments, erred in formulating 21 Plaintiff’s residual functional capacity, and erred in finding Plaintiff could perform past work. 22 The Commissioner opposed and filed a cross–motion for summary judgment. 23 After considering the parties’ written briefing, the record, and the applicable law, the 24 Court DENIES the Commissioner’s motion for summary judgment, GRANTS Plaintiff’s motion, 25 and REMANDS the case to the Commission for further proceedings. 26 /// 27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and the parties 28 consented to the jurisdiction of the undersigned for all purposes. (See ECF Nos. 6, 19.) 1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2 2 Plaintiff applied for disability insurance benefits on November 13, 2014, alleging an onset 3 date of January 17, 2013 . (Administrative Transcript (“AT”) 55.) Plaintiff claimed the following 4 medical conditions: “Back Problems. Bipolar. Hand Tremors.” (Id.) Plaintiff’s application was 5 denied initially and again upon reconsideration. (AT 54, 66.) Plaintiff, aided by an attorney, 6 sought review of these denials with an ALJ. (AT 81–83.) At a May 9, 2017 hearing, Plaintiff 7 testified about her conditions, and t he ALJ heard testimony from a vocational expert regarding 8 Plaintiff’s ability to work. (AT 34–48.) 9 On July 27, 2017, the ALJ issued a decision determining that Plaintiff was not disabled for 10 the relevant period. (AT 15–27.) At step one, the ALJ concluded Plaintiff had not engaged in 11 substantial gainful activity since January 17, 2013. (AT 17.) At step two, the ALJ found Plaintiff 12 had the following severe impairments: “degenerative disc disease of the lumbar spine; 13 osteoarthritis of the bilateral hands; and carpal tunnel syndrome of the bilateral hands with history 14 of carpal tunnel release.” (Id.) Relevant here, the ALJ found Plaintiff’s alleged bipolar condition 15 to cause “minimal limitation[s],” and so were deemed non–severe. (AT 19–20.) At step three, 16 The ALJ determined the severe impairments did not meet or medically equal a listed impairment. 17 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 18 engage in any substantial gainful activity” due to “a medically determinable physical or mental 19 impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571–76; Bowen v. Yuckert, 482 U.S. 20 137, 140–42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the 21 claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step 22 three. If not, then a finding of not disabled is appropriate. 23 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the 24 claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing her past relevant work? If so, 25 the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any 26 other work? If so, the claimant is not disabled. If not, the claimant is disabled. 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 (AT 21). 2 Based on this information, the ALJ found Plaintiff had the residual functional capacity 3 (“RFC”) to perform “ligh t work,” with the following exceptions: “[She is limited to] frequent 4 kneeling, crouching and climbing ramps and stairs; occasional stooping, crawling, and climbing 5 ladders, ropes and scaffolds; and capable of frequent handling with right upper extremity.” (AT 6 21.) In reaching this conclusion, the ALJ stated he considered Plaintiff’s expressed symptoms, 7 the objective medical evidence in th e record, and the opinion evidence given by the examining 8 and consulting physicians. (AT 21–26.) Relevant here, the ALJ stated the severity of Plaintiff’s 9 expressed symptoms were not consistent with the medical and other evidence in the record. (AT 10 22.) This conclusion included analyzing the evidence of Plaintiff’s degenerative disc disease and 11 back pain, her arthritis and carpel tunnel syndrome, and her treatment records regarding her hands 12 and fingers. (AT 23–24.) This also included weighing the opinions of several non–examining 13 physicians and a treating nurse practitioner. (AT 24–26.) Ultimately, the ALJ concluded at step 14 four that Plaintiff was capable of performing past work as a “cashier II (as generally performed),” 15 a “call out operator,” and a “checker, apparel.” (AT 26.) 16 On March 30, 2018, the Appeals Council denied Plaintiff’s appeal. (AT 1–6.) Plaintiff 17 then timely filed this action requesting judicial review of the Commissioner’s final decision, and 18 the parties filed cross–motions for summary judgment. (ECF Nos. 1, 17, 20.) 19 II. STANDARD OF REVIEW 20 The Court reviews the Commissioner’s decision de novo, and should reverse “only if the 21 ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ 22 applied the wrong legal standard.” Buck v. Berryhill, 869 F. 3d 1040, 1048 (9th Cir. 2017). 23 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such 24 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 25 Edlund v. Massanari, 253 F. 3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for 26 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 27 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 28 rational interpretation.” Tommasetti v. Astrue, 533 F. 3d 1035, 1038 (9th Cir. 2008). Further, the 1 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F. 3d at 1048. 2 III. ISSUES PRESENTED 3 Plaintiff alleges m ultiple errors on the ALJ’s part, including assigning error: (A) at step 2 4 by failing to include Plaintiff’s bipolar disorder as a severe condition; (B) when formulating 5 Plaintiff’s RFC, by ignoring evidence when assessing Plaintiff’s mental limitations and by failing 6 to consider the combination of Plaintiff’s severe and non–severe impairments; and (C) at step 4 7 by failing to make explicit and nece ssary findings as to the physical and mental demands of 8 Plaintiff’s past relevant work. Plaintiff requests a remand for further proceedings. (ECF No. 17.) 9 The Commissioner counters each of Plaintiff’s arguments, contending that substantial 10 evidence supported the ALJ’s assessment of Plaintiff’s mental functions and determination that 11 she could perform past relevant work. Thus, the Commissioner maintains the ALJ’s opinion 12 should be affirmed. (ECF No. 20.) 13 IV. LEGAL STANDARDS 14 A. Evaluation of Medical Source Opinions 15 The weight given to medical opinions depends in part on whether they are proffered by 16 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F. 3d 1195, 17 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F. 3d 821, 830 (9th Cir. 1995). Generally speaking, 18 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 19 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 20 Holohan, 246 F. 3d at 1202. The medical opinion of a claimant's treating doctor is given 21 “controlling weight” so long as it “is well-supported by medically acceptable clinical and 22 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the 23 claimant's] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating doctor's opinion is not 24 controlling, it is weighted according to factors such as the length of the treatment relationship and 25 the frequency of examination, the nature and extent of the treatment relationship, supportability, 26 and consistency with the record. 20 C.F.R. § 404.1527(c)(2)–(6). 27 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 28 considering its source, the court considers whether (1) contradictory opinions are in the record; 1 and (2) clinical findings support the opinions. Lester, 81 F. 3d at 831. A contradicted opinion of 2 a treating or examining professional may be rejected for “specific and legitimate” reasons. Id. at 3 830. An ALJ provides s p ecific and legitimate reasons by “setting out a detailed and thorough 4 summary of the facts and conflicting clinical evidence, stating [an] interpretation thereof, and 5 making findings.” Magallanes v. Bowen, 881 F. 2d 747, 751 (9th Cir. 1989). Conversely, to 6 reject an uncontradicted opinion of a treating or examining doctor, the ALJ must state “clear and 7 convincing reasons that are support ed by substantial evidence.” Ryan v. Comm'r, 528 F.3d 1194, 8 1198 (9th Cir. 2008). 9 In addition to considering the medical opinions of doctors, an ALJ must consider the 10 opinions of medical providers who are not within the definition of “acceptable medical sources.” 11 See 20 C.F.R. § 404.1527(b), (f). While those providers' opinions are not entitled to the same 12 deference, an ALJ may give less deference to “other sources” only if the ALJ gives reasons 13 germane to each witness for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 14 The same factors used to evaluate the opinions of medical providers who are acceptable medical 15 sources are used to evaluate the opinions of those who are not. Id. (citing § 404.1527(f)). 16 B. Evaluation of a Claimant’s Testimony and Third–Party Reports 17 In evaluating the extent to which an ALJ must credit the claimant’s report of her 18 symptoms, the Ninth Circuit has set forth the following two–step analysis: 19 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be 20 expected to produce the pain or other symptoms alleged. In this analysis, the 21 claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only 22 show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the 23 severity thereof. If the claimant satisfies the first step of this analysis, and there is no evidence of 24 malingering, the ALJ can reject the claimant's testimony about the severity of her 25 symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the 26 most demanding required in Social Security cases. 27 Revels v Berryhill, 874 F.3d 648, 655 (9th Cir. 2017). To reject third-party reports of a claimant's 28 impairments, the standard is much lower: an ALJ need only “give reasons that are germane to 1 each witness.” Id. (citing Molina, 674 F.3d at 1114). 2 V. DISCUSSION 3 A. The ALJ did not commit reversible error in failing to find Plaintiff’s bipolar 4 disorder to be severe at step 2. 5 Under step 2, the ALJ is to classify any impairments as either “severe” or “non–severe.” 6 See 20 C.F.R. §§ 404.1520, 404.1571–76. A “severe” impairment is one that significantly limits 7 the physical or mental ability to per form basic work activities. 20 C.F.R. § 404.1520(c). The step 8 2 assessment is a “de minimus screening to dispose of groundless claims.” Edlund, 253 F3d at 9 1158. 10 Plaintiff argues that the ALJ’s determination of Plaintiff’s bi–polar disorder as a non– 11 severe impairment was error, given Plaintiff’s statements made to her physicians (as well as 12 consistent statements made by Plaintiff’s sister to these physicians), and her medication and 13 examination history. (ECF No. 17–1 at pp. 9–10.) Plaintiff relies on Webb v Barnhart, 433 F.3d 14 683 (9th Cir. 2005), for the proposition that the ALJ’s conclusion must be “clearly established by 15 medical evidence.” However, as the court in Webb noted, “[a]n impairment or combination of 16 impairments may be found ‘not severe only if the evidence establishes a slight abnormality that 17 has no more than a minimal effect on an individual's ability to work.’” Webb, 433 F.3d at 686 18 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 19 Here, the ALJ stated that because Plaintiff’s “medically determinable mental impairments 20 cause no more than ‘mild’ limitation in any of the functional areas, they are non–severe.” (AT 20 21 (citing 20 CFR 404.1520a(d)(l)). In reaching this determination, the ALJ addressed the four 22 functional areas set out in the “Paragraph B” regulations for evaluating mental disorders. (AT 23 19.) A review of the record supports the ALJ’s finding, and because other error is apparent in the 24 ALJ’s decision, the undersigned will not dwell on this point. See, e.g., Lusardi v. Astrue, 350 25 Fed. App’x 169, 172 (9th Cir. Oct. 30, 2009) (evidence of mild to no functional limitations 26 attributable to a diagnosis of major depressive disorder sufficient to support a non-severe 27 finding); Stenberg v. Comm’r, 303 Fed. App’x 550, 552 (9th Cir. 2008) (no severe mental 28 impairment based on diagnosis of mild depressive disorder and only mild difficulties in 1 maintaining social functioning, concentration, persistence, and pace). 2 B. The ALJ failed to consider probative evidence of Plaintiff’s mental limitations in 3 formulating the R FC. 4 5 Despite finding that the ALJ did not err in assessing Plaintiff’s bipolar disorder at step 2, 6 the undersigned is concerned that the ALJ then appears to have fallen short in his duty to account 7 for this non–severe condition in for mulating Plaintiff’s RFC. The applicable regulation requires 8 the ALJ to consider all of Plaintiff’s medically determinable impairments, including any that are 9 not severe. 20 C.F.R. § 404.1545(a)(2); see also § 404.1545(e) (“When you have a severe 10 impairment(s), but your symptoms, signs, and laboratory findings do not meet or equal those of a 11 listed impairment in appendix 1 of this subpart, we will consider the limiting effects of all your 12 impairment(s), even those that are not severe, in determining your residual functional capacity.”) 13 Here, after considering the scope of Plaintiff’s bipolar disorder at step 2, the ALJ stated 14 “the following residual functional capacity assessment reflects the degree of limitation I have 15 found in the ‘paragraph B’ mental function analysis.” (AT 20.) The ALJ’s formulation 16 concluded Plaintiff had the RFC to perform light work, with exceptions only for certain physical 17 activities. (See AT 21; see also page 3 of this order, supra.) As no mental exceptions were 18 included in the RFC formulation, the undersigned can only assume the ALJ found Plaintiff’s 19 “mild . . . medically–determinable mental impairments” to be irrelevant to her RFC. 20 The ALJ then supported his RFC formulation with five pages of his rationale, including 21 citations to multiple medical records, opinions of Plaintiff’s physicians, and Plaintiff’s subjective 22 symptom statements. (See AT 21–26.) However, the undersigned cannot tell whether the ALJ 23 actually considered Plaintiff’s mental limitations in formulating the RFC, as the decision appears 24 to omit further substantive discussion of Plaintiff’s bipolar disorder. For example, in the first full 25 paragraph on AT 23, the ALJ states that “[a]lthough evidence reveals the claimant has undergone 26 regular treatment since January 2013 for her conditions, overall it appears the treatment has been 27 routine and/or follow up treatment to monitor medications and compliance.” The ALJ could have 28 1 intended this statement to include his rationale regarding Plaintiff’s mental limitations. However, 2 the remainder of that paragraph, and the next three paragraphs, all concern Plaintiff’s physical 3 impairments. (See AT 2 3 .) Similarly, the bulk of the ALJ’s discussion at AT 24–25 is dedicated 4 to his evaluation of the medical and opinion evidence of Plaintiff’s physical conditions. At best, 5 the ALJ’s statements at the bottom of AT 22 (“d]espite her impairments, the claimant has 6 engaged in a somewhat normal level of daily activity and interaction.”) and bottom of AT 23 7 (“the record reveals that the claima nt's allegedly disabling impairments were present at 8 approximately the same level of severity prior to the alleged onset date.”) could arguably 9 encompass his evaluation of Plaintiff’s physical and mental limitations. 10 However, as Plaintiff points out, there appears to be evidence probative of her claim that 11 her bipolar disorder does in fact mentally limit her––evidence the ALJ appears to have forgotten 12 to consider in formulating the RFC. Most probative is the mental examination performed by Dr. 13 Vincent Gong in May of 2016, which the ALJ neither discusses nor cites to at any point in the 14 discussion. (AT 1785–89.) As the Commission points out, competing medical and opinion 15 evidence does exist in the record concerning Plaintiff’s memory and other mental functions that 16 the ALJ did discuss under step 2. Under Ninth Circuit precedent, then, the ALJ needed to provide 17 “specific and legitimate” reasons for discounting the findings and opinions that arose from Dr. 18 Gong’s examination. Lester, 81 F. 3d at 831. Again, it may well be that the ALJ intended to give 19 little weight to Dr. Gong’s opinion, but to do so, the ALJ cannot simply ignore probative 20 evidence. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) 21 (“ALJs “need not discuss all evidence presented to [them]. Rather, [they] must explain why 22 significant probative evidence has been rejected.”); see also Diedrich v. Berryhill, 699 Fed. App’x 23 726 (9th Cir. 2017) (reaffirming the proposition). This also may include Plaintiff’s prescriptions 24 for Ambien (AR 2065) and Hydroxyzine (AR 1827, 1832), and the notes from Plaintiff’s 25 checkups with her treating nurse practitioner and social worker. (See AT 1719, 2065); see also 26 Molina, 674 F.3d at 1111 (“While those providers' opinions are not entitled to the same 27 deference, an ALJ may give less deference to “other sources” only if the ALJ gives reasons 28 germane to each witness for doing so.”). Thus, the ALJ committed error in the formulation of 1 | Plaintiff's RFC by apparently failing to consider Plaintiff's non—severe mental limitations 2 | stemming from her bipolar disorder—which the ALJ found at step 2 to be a “mild” “medically— 3 | determinable mental impairment.” (AT 20.) 4 In requesting a remand for further proceedings, Plaintiff correctly recognizes that 5 | additional proceedings are necessary. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016). 6 | As indicated above, the error is in failing to recognize and discuss probative evidence. It may 7 | well be that the ALJ completely discounts this evidence, or that it has a minimal effect on her 8 || RFC. However, this conflict is for the ALJ, and not the Court, to resolve. Edlund, 253 F. 3d at 9 | 1156 (“The ALJ is responsible for determining credibility, resolving conflicts in medical 10 | testimony, and resolving ambiguities.”). 11 C. The undersigned does not reach the ALJ’s step 4 analysis. 12 As the Court remands for further proceedings, which will require reexamination of the 13 | evidence and a reformulation of Plaintiff's RFC, the undersigned does not reach Plaintiffs other 14 | challenge regarding the ALJ’s step 4 determination. As the ALJ is aware, the applicable rulings 15 | of the Commission require, among other things, “[a] finding of fact as to the physical and mental 16 | demands of the past job/occupation.” Findings of fact assist the Court in reviewing the ALJ’s 17 | decision, and so the ALJ (and Plaintiff) would do well to develop this issue on remand. See 18 | Bowen, 482 U.S. at 146 n.5 (“The claimant bears the burden of proof in the first four steps of the 19 || sequential evaluation process.”). 20 ORDER 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The Commissioner’s motion for summary judgment (ECF No. 20) is DENIED; 23 2. Plaintiff's motion for summary judgment (ECF No. 17) is GRANTED; 24 3, This decision of the Commissioner is REVERSED, and the matter is 25 REMANDED for further proceedings; and 26 4. The Clerk is directed to enter judgment in the Plaintiff and CLOSE the case. 27 | Dated: January 22, 2020 hoff.1609 28 Fesbl Arn EENDALLJ.NE TINTTED CTATESC ATA CTCTR ATE TINGE