(SS) Yang v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOU YANG, Case No. 1:22-cv-00592-EPG 12 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 13 v. SECURITY COMPLAINT 14 COMMISSIONER OF SOCIAL (ECF Nos. 1, 16). 15 SECURITY, 16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding her 21 application for supplemental security income. The parties have consented to entry of final 22 judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with 23 any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 9). 24 Plaintiff presents the following issues: 25 1. Whether the ALJ erred in failing to consider the established impairment of 26 posttraumatic stress disorder (PTSD) to be severe, resulting in an incomplete mental residual functional capacity assessment. 27 2. Whether the ALJ’s error in concluding that Plaintiff could perform jobs that 28 exceed the Plaintiff’s mental RFC compels remand. 1 3. Whether the ALJ failed to offer legitimate reasons for rejecting Plaintiff’s subjective complaints. 2 (ECF No. 16, p. 3). Having reviewed the record, administrative transcript, the briefs of the 3 parties, and the applicable law, the Court finds as follows: 4 I. ANALYSIS 5 Plaintiff argues that the ALJ erred at Step Two by failing to consider whether Plaintiff’s 6 post-traumatic stress disorder (“PTSD”) was a severe impairment. As a result, Plaintiff argues 7 that the ALJ’s mental RFC assessment failed to reflect limitations related to that impairment. 8 If a claimant has a medically determinable impairment (MDI), the ALJ must determine 9 “whether [the] impairment(s) is severe,” which is referred to as Step Two. 20 C.F.R. § 404.1521. 10 A “severe” impairment is “any impairment or combination of impairments which significantly 11 limits [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. 12 § 404.1520(c). The “ability to do basic work activities,” in turn, is defined as “the abilities and 13 aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). 14 The Ninth Circuit has provided the following guidance regarding whether medically 15 determinable impairments are severe under Step Two: An impairment or combination of impairments may be found “not severe only 16 if the evidence establishes a slight abnormality that has no more than a minimal 17 effect on an individual’s ability to work.” [Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)] (internal quotation marks omitted) (emphasis added); see Yuckert 18 v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). The Commissioner has stated that “[i]f an adjudicator is unable to determine clearly the effect of an impairment or 19 combination of impairments on the individual’s ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.” 20 S.S.R. No. 85–28 (1985). Step two, then, is a “de minimis screening device [used] 21 to dispose of groundless claims,” Smolen, 80 F.3d at 1290, and an ALJ may find that a claimant lacks a medically severe impairment or combination of 22 impairments only when his conclusion is “clearly established by medical evidence.” S.S.R. 85-28. Thus, applying our normal standard of review to the 23 requirements of step two, we must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did 24 not have a medically severe impairment or combination of impairments. See also 25 Yuckert, 841 F.2d at 306 (“Despite the deference usually accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a 26 narrow construction upon the severity regulation applied here.”). 27 Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). Substantial evidence “is such relevant 28 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 686. 1 For mental impairments, the ALJ considers four broad functional areas to rate the degree 2 of any functional limitations, specifically, the ability to: (1) understand, remember, or apply 3 information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or 4 manage oneself. § 416.920a(c)(3). At Step Two, the ALJ found Plaintiff’s major left knee joint disorder, degenerative disc 5 disease, depression, anxiety, and asthma to be severe. (A.R. 20). The ALJ also concluded that 6 Plaintiff’s obesity was not a severe impairment. (Id.) 7 However, the ALJ did not address Plaintiff’s PTSD at Step Two. Nor did the ALJ list 8 PTSD among Plaintiff’s impairments or provide any analysis for why her PTSD was not severe. 9 Indeed, the ALJ did not address Plaintiff’s PTSD anywhere in the opinion. By failing to address 10 Plaintiff’s PTSD at Step Two or provide any reasons for not finding her PTSD to be severe at 11 Step Two, the ALJ erred. 12 The Commissioner does not argue otherwise, but rather argues that the ALJ’s failure to 13 address Plaintiff’s PTSD at Step Two, or anywhere in the opinion, was harmless because 14 Plaintiff’s PTSD symptoms were considered by the ALJ in connection with Plaintiff’s severe 15 anxiety and severe depression. (ECF No. 21, p. 4). Further, the Commissioner contends that 16 “even if the ALJ erred in not separately identifying Plaintiff’s alleged PTSD, which the 17 Commissioner does not concede, any such error was at most harmless, because the ALJ addressed 18 all of Plaintiff’s relevant symptoms and alleged functional limitations in assessing the RFC.” (Id., 19 p. 7). According to the Commissioner, Plaintiff fails to identify any specific limitations 20 attributable to her PTSD that were not accounted for in the RFC. (Id., p. 3-4). 21 The Court thus looks to whether the ALJ’s error in failing to address Plaintiff’s PTSD at 22 Step Two was harmless. Any error in failing to find an impairment severe at Step Two is 23 harmless where the ALJ considers the limitations posed by the impairment in the Step Four analysis. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 24 The Court has reviewed the record and finds that there was substantial evidence that 25 Plaintiff experienced symptoms relating to PTSD prior to the amended alleged onset date.1 For 26 27 1 At the hearing before the ALJ, the claimant amended the alleged onset date to January 13, 2019. (A.R. 28 18). 1 example, in a February 26, 2018 short-form mental evaluation, Plaintiff’s treating psychologist, 2 Dr. Ko Fang, noted Plaintiff’s PTSD diagnosis. (A.R. 458). Dr. Fang also noted that Plaintiff’s 3 behavior disturbance was “irritable,” and that both her recent and remote memory were severely 4 impaired. (Id.) Dr. Fang’s evaluation of Plaintiff’s perception states that Plaintiff experiences auditory hallucinations, specifically that Plaintiff “[h]ears the voice of her dead [sic] son calling 5 her name ‘Mom, Mom’.” (A.R. 459). 6 Further, records from after Plaintiff’s amended alleged onset consistently identify PTSD 7 related symptoms such as auditory hallucinations and flashbacks. A March 2019 assessment 8 update prepared by Dr. Fang states that Plaintiff reports “that she continue[s] to grie[ve] the loss 9 of her 20-year-old son due to heart attack. He died in her arm[s]. . .she was unable to call for help, 10 i.e., and that she feels guilty. She reports having flashbacks, nervous[ness] and an[xiety] about her 11 other children of their safety.”2 (A.R. 525). Further, Plaintiff reported to Dr. Fang that “she had 7 12 abortions and she believes the voices she has been hearing calling for her ‘mom, mommy’ were 13 the voices of her unborn children that were aborted which [sic] they could not find their ways to 14 the other realm.” (Id.) Dr. Fang also noted that Plaintiff reported having trouble sleeping, lack of 15 concentration, irritability, and poor memory. (Id.) In March 2020, Dr. Fang completed another 16 assessment update that notes under Plaintiff’s relevant history that she became an orphan at a very 17 young age and that “[s]he was left to take care of herself when she was about 7 years. She says 18 growing up she experiences much neglect, emotional abuse, starvation. She was able to escape 19 the communist government with relatives from Laos to Thailand.” (A.R. 531). In a February 2021 20 psychological evaluation, Dr. Fang extensively recounted Plaintiff’s personal and medical history, 21 noting that “[b]ased on test results, medical record, and clinical interview, she meets the 22 Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DS-IV) diagnosis of 23 Major Depressive Disorder and Posttraumatic Stress Disorder.” (A.R. 618). Additionally, Dr. Megan Stafford, the consultative mental examiner whose opinion the ALJ found to be 24 “marginally persuasive,”3 confirmed that Plaintiff was diagnosed with PTSD. (A.R. 472) (“DSM- 25 5 Diagnosis: 1. Major Depressive Disorder, Recurrent, Severe without Psychotic Features-per 26 27 2 Elsewhere in the record, Dr. Fang indicates that Plaintiff’s son died in 2011. (A.R. 618). 3 The ALJ found Dr. Stafford’s opinion “noteworthy” but only “marginally persuasive” because the 28 examination took place eight-to-nine months prior to the alleged onset date. (A.R. 26-27). 1 documentation; 2. PTSD—per documentation.”). Dr. Stafford’s evaluation is dated May 8, 2018. 2 (A.R. 469). Office records from Plaintiff’s primary care physician, Dr. Long Thao, also indicate 3 Plaintiff’s PTSD diagnosis. (A.R. 621, 645). 4 It is not clear from the record that the ALJ adequately considered limitations regarding Plaintiff’s PTSD in formulating the RFC in this case. The ALJ’s RFC is as follows: 5 After careful consideration of the entire record, the undersigned finds that the 6 claimant has the residual functional capacity to perform medium work as defined 7 in 20 CFR 416.967(c) except the claimant can occasionally work in cold temperature extremes and occasionally work around pulmonary irritants. The 8 claimant can frequently stoop, kneel, crouch, or crawl. The claimant would be limited to simple and routine tasks, they would not be capable of complex 9 judgment or analysis in the workplace. Can occasionally interact with coworkers and supervisors, but no public interaction, other than incidental contact. The 10 claimant can perform production paced work, as long as commensurate with that 11 found in a simple and routine environment, as previously defined. The claimant can adapt to changes in a workplace that are found in a simple and routine 12 environment. 13 (A.R. 23). There is nothing in this RFC that clearly incorporates the limitations in the record 14 associated with Plaintiff’s PTSD. Additionally, in the ALJ’s summary of the medical evidence, the ALJ states that the 15 Plaintiff denied hallucination and suicidal ideation. (A.R. 25 (“She also denied hallucination and 16 suicidal ideation.”) (citing A.R. 574-75); A.R. 27-27 (“Her consistently good grooming, 17 cooperative demeanor, and lack of hallucinations or suicidal ideation are also consistent with an 18 ability to tolerate some social interactions.”) (citing A.R. 508, 536-587)). However, as discussed 19 above, medical records indicate that Plaintiff suffered from hallucinations as a result of her 20 PTSD. While not discussing these reports of hallucinations, the ALJ’s decision cites to records 21 from Dr. Fang where Plaintiff reports not experiencing any hallucinations. (See A.R. 25 (citing 22 A.R. 574-75); A.R. 28 (citing A.R. 508, 536-587)). Upon review, one of the records cited by the 23 ALJ is a March 18, 2019 progress note that states “[s]he reports auditory no [sic] visual 24 hallucinations.” (A.R. 508). In a progress note dated the same day, however, Dr. Fang notes that 25 Plaintiff reports “transient suicidal ideation, flashbacks of her son when he died in her arms, 26 hearing children’s voices.” (A.R. 510). Moreover, the fact that Plaintiff reported at one time that 27 she had not experienced any hallucinations does not indicate that the ALJ considered Plaintiff’s 28 1 | consistent reports of hallucinations as a PTSD-related symptom. 2 Thus, it does not appear that the ALJ addressed symptoms related to PTSD, specifically 3 | Plaintiffs auditory hallucinations and flashbacks, when determining Plaintiff's RFC. 4 | Accordingly, the Court cannot conclude that the ALJ’s failure to consider Plaintiff's PTSD when 5 | assessing the RFC was harmless. See Loader v. Berryhill, 722 Fed.Appx. 653, 655 (9th Cir. 2018) 6 (finding harmful error where the ALJ completely failed to mention claimant’s mental health 7 impairments at Step Two and “the RFC itself says nothing at all about such impairments or their 8 effects.”); see also Lorenzo B. v. Saul, Case No. 19-cv-0786-AGS, 2020 WL 4732063, at * 2 9 (finding harmful Step Two error where the ALJ never discussed “[claimant’s] reported PTSD symptoms of ‘flashbacks,’ ‘hypervigilance’, and ‘startling more easily.’”). Accordingly, the Court finds remand warranted to address what, if any, additional limitations should be added to the RFC regarding Plaintiff's PTSD, and whether any change to 2 the RFC affects the ALJ’s ultimate decision regarding disability. * 13 I. CONCLUSION AND ORDER 14 Based on the above reasons, the decision of the Commissioner of Social Security is I5 REMANDED. On remand, the ALJ should address what, if any, additional limitations should be 16 | added to the RFC regarding Plaintiff's PTSD, and whether any change to the RFC affects the 17 | ALJ’s ultimate decision regarding disability. The Clerk of Court is directed to enter judgment in 18 | favor of Plaintiff and against Defendant. 19 20 IT IS SO ORDERED. 21 | Dated: _ September 8, 2023 [Je hey — UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 || ———— ‘Tn light of this finding, the Court does not address Plaintiff’s other arguments regarding the ALJ’s 28 | evaluation of Plaintiff's subjective symptom testimony or the ALJ’s Step Five analysis.