Holzman v. Colvin

Filing 14

ORDER - IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is VACATED and this case is REMANDED for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and shall terminate this case. (See document for full details). Signed by Judge Neil V Wake on 1/14/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria Holzman,

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No. CV-13-00627-PHX-NVW
Plaintiff,

ORDER

vs.

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Carolyn W. Colvin, Acting Commissioner
of Social Security,

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Defendant.

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Plaintiff Maria Holzman seeks review under 42 U.S.C. § 405(g) of the final

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decision of the Commissioner of Social Security (“the Commissioner”), which denied her

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disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act.

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Because the decision of the Administrative Law Judge (“ALJ”) is not supported by

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substantial evidence and is based on legal error, the Commissioner’s decision will be

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vacated and the matter remanded for further administrative proceedings.

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I.

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BACKGROUND
A.

Factual Background

Holzman was born in July 1959 and was 49 years old on the alleged disability
onset date. She has been diagnosed with numerous conditions including, but not limited
to, systemic lupus erythematosus (“SLE”), rheumatoid arthritis, hiatal hernia with gastro
esophageal reflux disease (“GERD”), asthma, breast cancer in remission, and
fibromyalgia.

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Holzman has a bachelor’s degree in sociology. She worked as a teacher’s aide for
four and a half years, until September 2008 when she kept getting pneumonias and
bronchitis. For about a month in 1999, she worked as an office worker answering
telephones.

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B.

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On April 26, 2010, Holzman protectively applied for disability insurance benefits,
alleging disability beginning September 10, 2008. On December 9, 2011, she appeared
with her attorney and testified at a hearing before the ALJ. A vocational expert also
testified.

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On January 3, 2012, the ALJ issued a decision that Holzman was not disabled
within the meaning of the Social Security Act. The Appeals Council denied Holzman’s
request for review of the hearing decision, making the ALJ’s decision the
Commissioner’s final decision. On March 27, 2013, Holzman sought review by this
Court.

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Procedural History

In her Reply Brief (Doc. 13), Holzman summarizes the issues she presents on
appeal as follows:

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(1) Whether the ALJ went through the proper analysis and
considered listings 14.02 for lupus and 14.09 for arthritis;

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(2) Whether the ALJ erred by failing to assess Ms. Holzman’s
fibromyalgia and celiac disease; and

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(3) Whether the ALJ justified his determination that Ms.
Holzman is not credible.

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II.

STANDARD OF REVIEW
The district court reviews only those issues raised by the party challenging the

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
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may set aside the Commissioner’s disability determination only if the determination is
not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a
preponderance, and relevant evidence that a reasonable person might accept as adequate
to support a conclusion considering the record as a whole. Id. In determining whether
substantial evidence supports a decision, the court must consider the record as a whole
and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.
As a general rule, “[w]here the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be
upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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Harmless error principles apply in the Social Security Act context. Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains
substantial evidence supporting the ALJ’s decision and the error does not affect the
ultimate nondisability determination. Id. The claimant usually bears the burden of
showing that an error is harmful. Id. at 1111.
III.

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To determine whether a claimant is disabled for purposes of the Social Security
Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears
the burden of proof on the first four steps, but at step five, the burden shifts to the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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FIVE-STEP SEQUENTIAL EVALUATION PROCESS

At the first step, the ALJ determines whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not
disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant
has

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“severe”

medically

determinable

physical

or

mental

impairment.

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step
three, the ALJ considers whether the claimant’s impairment or combination of
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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P
of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to
be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the
claimant’s residual functional capacity and determines whether the claimant is still
capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not
disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step,
where he determines whether the claimant can perform any other work based on the
claimant’s residual functional capacity, age, education, and work experience.
§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is
disabled. Id.
At step one, the ALJ found that Holzman meets the insured status requirements of
the Social Security Act through December 31, 2013, and that she has not engaged in
substantial gainful activity since September 10, 2008, the alleged onset date. At step two,
the ALJ found that Holzman has the following severe impairments:

SIADH, breast cancer in remission, arthritis, depression, asthma, hypertension, hiatal
hernia with GERD, and rheumatoid arthritis. At step three, the ALJ determined that
Holzman does not have an impairment or combination of impairments that meets or
medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.
At step four, the ALJ found that Holzman:

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GERD, SLE,

has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) with the following
exceptions:
can occasionally climb ladders, ropes, or
scaffolds; can frequently climb ramps or stairs; can
occasionally crawl; should avoid concentrated exposure to
extreme temperatures, both hot and cold, extreme direct
sunlight, irritants such as fumes, odors, dusts and gases; avoid
concentrated exposure to moving machinery and unprotected
height; and limited to simple, unskilled work.
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The ALJ further found that Holzman is capable of performing past relevant work as a
teacher aide II and office worker. Alternatively, the ALJ concluded that, considering
Holzman’s age, education, work experience, and residual functional capacity, there are
other jobs that exist in significant numbers in the national economy that Holzman could
perform.
IV.

ANALYSIS
A.

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The ALJ Failed to Consider Listings 14.02 for Lupus and 14.09 for
Inflammatory Arthritis.

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At step three of the five-step sequential evaluation process, the ALJ must consider

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whether the claimant’s impairment or combination of impairments meets or medically

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equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.

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§ 404.1520(a)(4)(iii). Here, at step three, the ALJ determined that Holzman does not

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have an impairment or combination of impairments that meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404, but stated reasons

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relevant only to whether the severity of Holzman’s mental impairment satisfied a listing.

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The ALJ found that Holzman’s severe impairments include lupus (SLE), but did

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not provide any analysis of whether this impairment alone or in combination with other

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impairments meets or medically equals listing 14.02 (systemic lupus erythematosus).

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The ALJ also found that Holzman’s severe impairments include rheumatoid arthritis, but

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did not provide any analysis of whether this impairment alone or in combination with

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other impairments meets or medically equals listing 14.09 (inflammatory arthritis).

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Listing 14.09 expressly includes rheumatoid arthritis.

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The Court cannot evaluate whether the ALJ’s determination that Holzman does

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not have an impairment or combination of impairments that meets or medically equals a

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listing is based on substantial evidence because the ALJ’s hearing decision does not

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provide his analysis, if any.

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B.

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The ALJ Erred by Failing to Assess Ms. Holzman’s Fibromyalgia and
Celiac Disease.

Holzman’s allegations of severe impairment due to fibromyalgia and celiac
disease were presented to the ALJ, and he excluded them from the list of severe
impairments without explanation. He carefully explained why he did not consider her
alleged poor concentration and poor vision to be severe impairments, but provided no
explanation regarding fibromyalgia and celiac disease even though he mentions in
passing elsewhere that she has fibromyalgia.
The Court cannot evaluate whether the ALJ’s determination that Holzman is not
severely impaired by fibromyalgia and celiac disease because the ALJ’s hearing decision
does not provide his analysis, if any.
C.

The ALJ Justified His Determination that Ms. Holzman Is Not Fully
Credible.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, such as fatigue, the ALJ is required to engage in a two-step analysis: (1)

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determine whether the claimant presented objective medical evidence of an impairment

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that could reasonably be expected to produce some degree of the pain or other symptoms

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alleged; and, if so with no evidence of malingering, (2) reject the claimant’s testimony

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about the severity of the symptoms only by giving specific, clear, and convincing reasons

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for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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First, the ALJ found that Holzman’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms.

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Holzman’s statements regarding the intensity, persistence, and limiting effects of the

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symptoms not credible to the extent they are inconsistent with the ALJ’s residual

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functional capacity assessment.

Second, the ALJ found

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Holzman contends that she is unable to perform light work with the limitations the

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ALJ identified in his residual functional capacity determination. Holzman testified, “I

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live on my recliner because I hurt all the time.” She testified that she needs to elevate her
feet and change positions frequently. She also testified that she drives to get mail from
the mailbox about five or six houses from hers. She said she has difficulty gripping
things, opening jars, and writing, but she is able to lift a gallon of milk and use a
computer and computer mouse. She said she has difficulty sleeping at night, does not
nap, and rests all day. She testified that she has pain in all of her joints. She said that she
goes to a nearby grocery store if she needs one or two items, and her husband does the
weekly grocery shopping. But she also testified she can shower, wash her hair, dress
herself, put on her shoes, tie shoelaces, and drive. Further, Holzman testified that in the
last year she had developed memory problems. She said she has poor concentration, gets
lost driving places, and while watching a movie or television she “spaces out.”
The ALJ observed that Holzman’s “allegations regarding the severity of her
symptoms and limitations is diminished because those allegations are greater than
expected in light of the objective evidence of record.” The ALJ noted that Holzman
received only routine conservative treatment for her impairments. He also stated that
treatments for arthritis, fibromyalgia, chronic fatigue, and asthma appeared to be
successful. Holzman contends her “major issue is fibromyalgia, which has no treatment
beyond medication and rest,” but the ALJ referred to rheumatology treatment notes
(without record citation) showing that Holzman’s fibromyalgia was being treated
successfully with gabapentin.
Holzman also contends that she “regularly went to the hospital” for pulmonary
issues and recurrent pneumonia and “there is no commonly prescribed treatment she did
not perform for her conditions.” But the records she cites show only that she was
hospitalized for pneumonia December 21-26, 2008, during which she reported previous
hospitalizations. The discharge report by Michael Schlossberg, M.D., states that, upon
consultation with a pulmonologist, “the overall clinical picture was most consistent with
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aspiration pneumonia related to the underlying hiatal hernia” and that he told the patient
“she should be evaluated by a surgeon for repair of the hiatal hernia.”
The ALJ also considered that Holzman’s husband reported that she is able to
prepare simple meals, do laundry and housework, drive, and walk ½ block. Although the
ALJ concluded that Holzman’s husband’s statement contradicted her testimony that her
husband does the chores such as cooking and housekeeping, in fact Holzman did not
directly answer the question whether she is able to do any cooking or housecleaning.
Instead, she said that she “Swiffers” and picks up “a little bit”, and her house is not clean.
The ALJ’s error is harmless because whether Holzman’s husband does any chores is
irrelevant. Holzman’s husband reported that Holzman is able to do more than she admits
despite limitations recognized by the ALJ.
Thus, the ALJ gave specific, clear, and convincing reasons for finding Holzman’s
subjective complaints less than fully credible.
D.

This Case Will Be Remanded for Further Administrative Proceedings.

If the ALJ’s decision is not supported by substantial evidence or suffers from legal
error, the court has discretion to reverse and remand either for an award of benefits or for
further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.
1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for further
proceedings is appropriate if enhancement of the record would be useful.” Benecke v.
Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the record has been
developed fully and further administrative proceedings would serve no useful purpose,
the district court should remand for an immediate award of benefits.” Id. (citing Smolen,
80 F.3d at 1292).
Here, the record has not been developed fully, and further administrative
proceedings are required. Therefore, Holzman’s request for remand for immediate award
of benefits will be denied.
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IT IS THEREFORE ORDERED that the final decision of the Commissioner of
Social Security is VACATED and this case is REMANDED for further proceedings
consistent with this opinion. The Clerk shall enter judgment accordingly and shall
terminate this case.
Dated this 14th day of January, 2014.

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