Brooks v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 LORENZO B., Case No.: 19-cv-0786-AGS 11 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 12 & 13) 12 v. 13 Andrew SAUL, Commissioner of Social Security, 14 Defendant. 15 16 In denying disability benefits, the Social Security Administration never discussed 17 claimant’s well-documented PTSD diagnosis. The key question is whether that oversight 18 was harmless error. 19 BACKGROUND 20 At his disability hearing, claimant Lorenzo B. testified that at a 2010 get-together, 21 someone slashed his throat. (AR 51.) Medical staff needed 17 staples to stitch up the 22 wound, which left a permanent scar. (AR 51-52.) According to Lorenzo, this incident still 23 causes him “flashbacks . . . . [a]ll the time,” in which he “freeze[s] in public,” as well as 24 “night terror[s]” and “crying spells.” (AR 52, 55.) Due to this trauma, several medical 25 professionals diagnosed Lorenzo with PTSD. (See AR 134, 402-03, 441, 681, 833.) His 26 treating psychiatrist found that the PTSD caused “consistent sleep impairment,” 27 “hypervigilance,” an “impair[ed] . . . ability to interact with others,” and “an increase in 28 depressive symptoms.” (AR 808; see also AR 55, 811.) At the end of the disability hearing, 1 Lorenzo’s attorney asked the ALJ to consider whether his client met or exceeded medical 2 Listing 12.15, concerning trauma- and stressor-related disorders. (AR 66); see 20 C.F.R. 3 Pt. 404, Subpt. P, App. 1 § 12.15. 4 Despite an otherwise thorough analysis of the medical evidence, the ALJ never 5 discussed Lorenzo’s PTSD diagnosis, nor Listing 12.15. Instead, the ALJ found that 6 Lorenzo had four other severe mental impairments, but still rejected his disability-benefits 7 application. (AR 19, 30.) 8 DISCUSSION 9 On appeal, Lorenzo argues—among other things—that the ALJ erred at Steps 2 10 and 3 of the Social Security Administration’s required five-step evaluation. 11 A. Step 2: Severe Impairment 12 At Step 2, claimant bears the burden of showing a medically “severe impairment” 13 or “combination of impairments.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). That 14 burden is slight. Step 2 is a “de minimis screening device used to dispose of groundless 15 claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (alterations omitted). At this 16 step, every impairment is “severe” unless the medical evidence “clearly establishe[s]” a 17 “slight abnormality that has no more than a minimal effect on an individual’s ability to 18 work.” Id. at 686-87. 19 Lorenzo argues that the ALJ erred at Step 2 by not “list[ing] PTSD as a severe 20 impairment.” (ECF 12, at 12.) The ALJ never mentioned PTSD in his Step 2 discussion 21 (AR 19-20), even though the treating psychiatrist found that Lorenzo’s PTSD caused 22 “consistent sleep impairment,” “hypervigilance, nightmares, . . . irritability,” an 23 “impair[ed] . . . ability to interact with others,” self-isolation, and “an increase in depressive 24 symptoms.” (AR 808.) These PTSD symptoms easily meet the de minimis Step 2 25 screening standard for a severe impairment, and are well-established by the medical record. 26 (See, e.g., AR 134, 149, 402-03, 423, 431, 441, 681, 744, 833.) Thus, this Court finds that 27 the ALJ erred by ignoring PTSD at Step 2. 28 1 The Commissioner does not argue otherwise, but contends any error was harmless. 2 (See ECF 13-1, at 5.) An ALJ’s erroneous omission of an impairment at Step 2 is harmless 3 when the ALJ “nonetheless considers the limitations posed by the impairment” at a later 4 step in the inquiry. See Michaud v. Saul, No. 18-cv-02625-JLS-MDD, 2019 WL 5684411, 5 at *3 (S.D. Cal. Nov. 1, 2019); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 6 (finding Step 2 error harmless when the “ALJ extensively discussed [claimant’s] bursitis 7 at Step 4 of the analysis”). 8 But the ALJ never considered all the limitations posed by Lorenzo’s PTSD. First, 9 the ALJ never discussed Lorenzo’s reported PTSD symptoms of “flashbacks,” 10 hypervigilance, and “start[l]ing more easily.” (Compare AR 22-27 with AR 403, 423, 808, 11 811, 833, 860.) Nor did he evaluate the combined effects of these symptoms. Second, 12 although the record is littered with references to Lorenzo’s PTSD diagnosis, the ALJ never 13 mentioned that diagnosis. (Compare AR 25 with AR 134, 149, 402-03, 423, 431, 441, 681, 14 744, 808, 833.) Even while discussing “mental health treatment” for various psychiatric 15 conditions, the ALJ skipped over the PTSD diagnosis. (AR 25.) In fact, the ALJ’s sole 16 passing reference to “post-traumatic stress disorder” was in the context of the impairments 17 Lorenzo claimed in his “disability report.” (AR 23.) Third, the ALJ’s Residual Functional 18 Capacity assessment included no restrictions linked to PTSD.1 (AR 22.) Finally, while not 19 dispositive, the ALJ never mentioned the throat-slashing trauma that led to Lorenzo’s 20 PTSD, even though Lorenzo testified about it. (Compare AR 22-27 with AR 51-52.) 21 Because the ALJ failed to later analyze Lorenzo’s PTSD, the error was not harmless 22 and “[r]emand is required so that an ALJ can proceed beyond step two . . . with respect to 23 24 25 1 In fairness to the ALJ, he imposed Residual Functional Capacity limitations of “no 26 public interaction” and “occasional interaction with supervisors and co-workers.” (AR 22.) 27 But in justifying those mental-health restrictions, the ALJ focused on Lorenzo’s “treatment for the diagnoses of depression, anxiety disorder, psychotic disorder, and bipolar disorder,” 28 1 plaintiff’s severe impairment of [PTSD].” See Cable v. Astrue, No. CIV S-06-0515 DAD, 2 2007 WL 2827798, at *6 (E.D. Cal. Sept. 27, 2007). 3 B. Step 3: Listing 12.15 4 At Step 3, the ALJ determines whether claimant has “an impairment” or 5 “combination of impairments” that meet or equal the criteria of any of the conditions 6 cataloged in the “‘Listing of Impairments’ (referred to as the ‘listings’).” Ford v. Saul, 950 7 F.3d 1141, 1148 (9th Cir. 2020). An ALJ who does not adequately “consider a Listing that 8 plausibly applies to the claimant’s case” commits error. Torres v. Saul, Case No. 9 5:19-CV-00049 (VEB), 2019 WL 7882061, at *7 (C.D. Cal. Oct. 31, 2019). Lorenzo 10 contends that the ALJ erred by failing to consider whether he met or equaled Listing 12.15, 11 regarding trauma- and stressor-related disorders. (ECF 12, at 15.) 12 The Commissioner argues that Lorenzo presented no evidence of PTSD, so the “ALJ 13 had no duty to discuss Listing 12.15.” (ECF 13-1, at 6-7.) But there was ample PTSD 14 evidence at hand. See Section A, above. In addition to the voluminous medical records and 15 repeated PTSD diagnoses, Lorenzo testified about his PTSD symptoms, and his attorney 16 specifically asked the ALJ to consider Listing 12.15. (See AR 51-52, 66; see also AR 111, 17 129 (discussing Lorenzo’s PTSD at prior administrative proceedings).) In short, Lorenzo 18 easily cleared the low bar of showing that Listing 12.15 plausibly applied to him. It was 19 error for the ALJ not to discuss it.2 20 21 22 23 24 2 Finally, the ALJ erred in evaluating the opinion of treating psychiatrist 25 Dr. Khatami. Although the ALJ did not give that treating doctor’s opinion controlling weight, the ALJ was still supposed to properly weigh it according to the regulatory factors 26 in 20 C.F.R. § 404.1527(c). See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). As 27 to Dr. Khatami, the ALJ never considered at least one of those factors—“the length of the treatment relationship and the frequency of examination”—and that “failure alone [can] 28 1 Remand Type 2 A court may remand for an immediate award of benefits when, among other things, 3 ALJ would be required to find the claimant disabled on remand” and “further 4 ||administrative proceedings would serve no useful purpose.” Garrison v. Colvin, 759 F.3d 5 1020 (9th Cir. 2014). Given the significant mental-health restrictions already imposed 6 the ALJ, this Court cannot say what impact the overlooked PTSD diagnosis and 7 ||symptoms would have on the disability analysis. So, the case will be remanded for further 8 || proceedings. 9 CONCLUSION 10 Lorenzo B.’s summary-judgment motion (ECF is GRANTED, the 11 |}Commissioner’s summary-judgment motion (ECF 13) is DENIED, and the case is 12 ||remanded for further proceedings consistent with this opinion. 13 Dated: August 14, 2020 14 — 15 Hon. ndrew G. Schopler United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28