Jin v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KANG JIN, Case No. 4:18-cv-07091-KAW 8 Plaintiff, ORDER REGARDING CROSS- MOTIONS FOR SUMMARY 9 v. JUDGMENT 10 NANCY A. BERRYHILL, Re: Dkt. Nos. 21, 22 11 Defendant. 12 13 Plaintiff Kang Jin seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 14 Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and 19 DENIES Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff filed for supplemental disability benefits on May 25, 2015, alleging disability 22 beginning on December 5, 2012. Administrative Record (“AR”) 168. The Social Security 23 Administration denied Plaintiff’s application initially and on reconsideration. (AR 62, 69.) 24 Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”), and the hearing 25 was held on December 19, 2017. (AR 21, 84.) 26 Following the hearing, the ALJ denied Plaintiff’s application on January 9, 2018. (AR 21- 27 27.) A request for review of the ALJ’s decision was filed with the Appeals Council on March 6, 1 2018. (AR 1.) On November 21, 2018, Plaintiff commenced this action for judicial review 2 pursuant to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) 3 Plaintiff filed his motion for summary judgment on June 5, 2019. (Pl.’s Mot., Dkt. No. 4 21.) Defendant filed an opposition and cross-motion for summary judgment on July 2, 2019. 5 (Def.’s Opp’n, Dkt. No. 22.) Plaintiff filed his reply on July 16, 2019. (Pl.’s Reply, Dkt. No. 23.) 6 II. LEGAL STANDARD 7 A court may reverse the Commissioner’s denial of disability benefits only when the 8 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 9 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 11 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 13 determining whether the Commissioner's findings are supported by substantial evidence, the 14 Court must consider the evidence as a whole, weighing both the evidence that supports and the 15 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 16 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 17 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 18 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 19 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 20 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 21 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 22 step two, the Commissioner determines whether the claimant has a “medically severe impairment 23 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 24 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 25 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 26 under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 27 met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 1 fourth step in the sequential evaluation process is to determine the claimant's residual functional 2 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 3 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 4 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 5 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 6 If the claimant meets the burden of establishing an inability to perform prior work, the 7 Commissioner must show, at step five, that the claimant can perform other substantial gainful 8 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 9 burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 10 Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954. 11 III. THE ALJ’S DECISION 12 The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity 13 since May 28, 2015, the application date. AR 23. At step two, the ALJ found that Plaintiff had the 14 following impairments: diabetes mellitus, affective disorders, and anxiety disorders. Id. The ALJ, 15 however, found that these impairments, or the combination thereof, were not severe, rendering 16 Plaintiff not disabled under the Social Security Act. AR 23, 27. 17 IV. DISCUSSION 18 In his motion for summary judgment, Plaintiff argues that the ALJ erred at Step Two by 19 failing to find his impairments, or the combination thereof, severe. (Pl.’s Mot. at 6-7.) 20 Specifically, while the ALJ acknowledged that Plaintiff has diabetes mellitus, affective disorders, 21 and anxiety disorders, he found that the combination of these impairments was not severe. AR 23. 22 “[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.” 23 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 24 153–54 (1987)). As a result, “[a]n impairment or combination of impairments may be found ‘not 25 severe only if the evidence establishes a slight abnormality that has no more than a minimal effect 26 on an individual’s ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 27 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotation marks omitted)) 1 If a finding of non-severity is not “clearly established by medical evidence,” the ALJ must 2 continue to step three. See Tanner v. Colvin, No. EDCV 14-01689 RNB, 2015 WL 1966993, at *1 3 (C.D. Cal. Apr. 30, 2015) (citing Social Security Ruling (“SSR”) 85-28). Here, the ALJ explicitly 4 states that he considered SSR 85-28 in finding that the combination of Plaintiff’s impairments 5 were not severe. AR 24. In doing so, however, he ignored the ruling, which states in pertinent 6 part: 7 A claim may be denied at step two only if the evidence shows that the individual's impairments, when considered in combination, are 8 not medically severe, i.e., do not have more than a minimal effect on the person's physical or mental ability(ies) to perform basic work 9 activities. If such a finding is not clearly established by medical evidence, however, adjudication must continue through the 10 sequential evaluation process. 11 SSR 85-28 (emphasis added). In order to make the denial at step two, the ALJ assigned little 12 weight to the medical opinions of every treating and examining physician, despite detailing their 13 opinions pertaining to Plaintiff’s limitations and then discounting them based on limited treatment 14 records and concerns regarding Plaintiff’s credibility. See AR 25-27. Then, the ALJ presumably 15 assigned great weight to two nonexamining DDS consultants, who did not have the benefit of 16 reviewing Plaintiff’s most recent treatment records. AR 27. This weighing of the evidence, 17 however, as well as the ALJ’s findings regarding Plaintiff’s credibility, would be more appropriate 18 at step three of the sequential process. Indeed, all that is required at step two is a minimal showing 19 of severity, one that is satisfied by two examining opinions regarding Plaintiff’s physical 20 limitations and two examining opinions pertaining to his mental limitations, which, in 21 combination, demonstrate that Plaintiff experiences more than minimal work limitations sufficient 22 to satisfy step two. See AR 266-74, 275-87, 288-91, 296-97. 23 In opposition, Defendant contends that the ALJ found that Plaintiff’s diabetes was without 24 complication and that Plaintiff’s testimony where he complained of fatigue was contradicted by 25 treatment notes. (Def.’s Opp’n at 4.) In reply, Plaintiff correctly argues that the ALJ pointed only 26 to treatment notes in August 2015 in which Plaintiff denied fatigue.1 (Pl.’s Reply at 3.) 27 1 Regardless, an ALJ “may not disregard [a claimant’s testimony] solely because it is not 2 substantiated affirmatively by objective medical evidence.” Trevizo v. Berryhill, 871 F.3d 664, 3 679 (9th Cir. 2017) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) 4 || (internal quotations omitted)). Indeed, it is very possible that Plaintiff's condition may have 5 deteriorated in the two intervening years. Nonetheless, as stated above, the showing required at 6 step two is de minimis, and the administrative record supports a finding that, at the very least, the 7 combination of Plaintiff's impairments are severe, such that the inquiry must proceed to step three. 8 In light of the foregoing, the Court finds that the ALJ erred in finding Plaintiff's 9 impairments not severe at step two. 10 V. CONCLUSION 11 For the reasons set forth above, the Court GRANTS Plaintiff's motion for summary 12 || judgment and DENIES Defendant’s cross-motion for summary judgment, and remands the case 13 for further proceedings at step two. On remand, the ALJ must properly evaluate the medical 14 || evidence based on applicable law and consistent with this opinion. 3 15 IT IS SO ORDERED. 16 Dated: March 2, 2020 . 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28