Young v. Colvin

Filing 14

ORDER: The final decision of the Commissioner of Social Security is reversed. This matter is remanded with instructions to review the record as a whole and issue a new decision. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 2/21/2017. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 William Thomas Young, Plaintiff, 10 11 ORDER v. 12 No. CV-16-02264-PHX-DGC Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 16 17 Plaintiff William Thomas Young seeks review under 42 U.S.C. § 405(g) of the 18 final decision of the Commissioner of Social Security denying him disability insurance 19 benefits and supplemental security income. The Court will remand this case to the 20 agency with instructions to review the record as a whole and issue a new decision. 21 I. Background. 22 On September 30, 2010, Plaintiff applied for disability insurance benefits and 23 supplemental security income, alleging disability beginning August 20, 2010. Plaintiff 24 subsequently amended his disability onset date to October 1, 2011. On April 12, 2012, a 25 hearing was held before the ALJ. On April 25, 2012, the ALJ issued a decision that 26 Plaintiff suffered from severe impairments but was not disabled within the meaning of 27 the Social Security Act. The Appeals Council vacated and remanded the ALJ’s decision. 28 A.R. 169. 1 On July 8, 2014, Plaintiff appeared with his attorney and testified at a second 2 hearing before the ALJ. A vocational expert also testified. On October 2, 2014, the ALJ 3 issued a second decision, this time holding that Plaintiff did not suffer from a severe 4 impairment and thus was not disabled within the meaning of the Social Security Act. The 5 Appeals Council denied Plaintiff’s request for review of the hearing decision, making the 6 ALJ’s decision the Commissioner’s final decision. 7 II. Legal Standard. 8 The Court reviews only those issues raised by the party challenging the ALJ’s 9 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set 10 aside the determination only if it is not supported by substantial evidence or is based on 11 legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 12 more than a scintilla, less than a preponderance, and relevant evidence that a reasonable 13 person might accept as adequate to support a conclusion considering the record as a 14 whole. Id. In determining whether substantial evidence supports a decision, the court 15 must consider the record as a whole and may not affirm simply by isolating a “specific 16 quantum of supporting evidence.” Id. 17 III. The ALJ’s Five-Step Evaluation Process. 18 To determine whether a claimant is disabled for purposes of the Social Security 19 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 20 the burden of proof on the first four steps, but at step five, the burden shifts to the 21 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 22 At the first step, the ALJ determines whether the claimant is engaging in 23 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 24 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 25 has 26 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 27 three, the ALJ considers whether the claimant’s impairment or combination of a “severe” medically determinable 28 - 2 -  physical or mental impairment. 1 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 2 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 3 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 4 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 5 still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant 6 is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final 7 step, where he determines whether the claimant can perform any other work based on the 8 claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 9 claimant is not disabled. Id. If not, the claimant is disabled. Id. 10 At step one, the ALJ found that Plaintiff meets the insured status requirements of 11 the Social Security Act through December 31, 2017, and that he has not engaged in 12 substantial gainful activity since October 1, 2011. At step two, the ALJ found that 13 Plaintiff has the following medically determinable impairments: bipolar disorder, 14 posttraumatic stress disorder (PTSD), personality disorder, polysubstance abuse in 15 remission, and alcohol abuse in remission. The ALJ also found, however, that none of 16 these impairments, or a combination of the impairments, significantly limited the ability 17 of Plaintiff to perform basic work related activities for 12 consecutive months. The ALJ 18 therefore found that Plaintiff does not have a severe impairment or combination of 19 impairments under 20 C.F.R. § 404.1521 et seq. The ALJ accordingly held that Plaintiff 20 is not disabled. The ALJ did not proceed to steps three, four, or five. 21 IV. Analysis. 22 Plaintiff argues the ALJ erred in finding that he did not have severe impairments a 23 step two, particularly in light of the ALJ’s failure to explain why his 2014 decision on 24 this issue contradicted his 2012 decision. Plaintiff makes other arguments, but they are 25 not relevant to this ruling. Doc. 11. 26 The key question is the appropriate analysis to apply to a step-two decision that 27 impairments are not severe. A “severe” impairment is “any impairment or combination 28 - 3 -  1 of impairments which significantly limits [a claimant’s] physical or mental ability to do 2 basic work activities.” 3 activities,” in turn, is defined as “the abilities and aptitudes necessary to do most jobs.” 4 20 C.F.R. § 404.1521(b). “An impairment is not severe if it is merely ‘a slight 5 abnormality (or combination of slight abnormalities) that has no more than a minimal 6 effect on the ability to do basic work activities.” Webb v. Barnhart, 433 F.3d 683, 686 7 (9th Cir. 2005) (quoting S.S.R. 96-3p). 20 C.F.R. § 404.1520(c). The “ability to do basic work 8 Significantly, “the step-two inquiry is a de minimis screening device to dispose of 9 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen 10 v. Yuckert, 482 U.S. 137, 153-54 (1987)). Its purpose “is to do no more than allow the 11 [Commissioner] to deny benefits summarily to those applicants with impairments of a 12 minimal nature which could never prevent a person from working.” Titles II & XVI: 13 Med. Impairments That Are Not Severe, SSR 85-28 (S.S.A. 1985) (internal quotation 14 omitted). 15 impairment or combination of impairments only when his conclusion is ‘clearly 16 established by medical evidence.’” Webb, 433 F.3d at 687 (quoting S.S.R. 85-28). Therefore, “an ALJ may find that a claimant lacks a medically severe 17 The Ninth Circuit has addressed the duty of a court when reviewing a step-two 18 decision that impairments are not severe. The Court of Appeals stated that the court 19 should apply the “normal standard of review” and “determine whether the ALJ had 20 substantial evidence to find that the medical evidence clearly established that [the 21 claimant] did not have a medically severe impairment or combination of impairments.” 22 Id. 23 The Court finds this instruction quite confusing. As mentioned in the standards set 24 forth above, substantial evidence is “less than a preponderance.” Orn, 495 F.3d at 630. 25 The reviewing court need not be persuaded by a preponderance of the evidence that the 26 ALJ’s decision is correct, but must find only “relevant evidence that a reasonable person 27 might accept as adequate to support a conclusion considering the record as a whole.” Id. 28 - 4 -  1 It is not uncommon to find objective medical evidence in a social security record that 2 supports both parties’ positions, and yet the reviewing court is to affirm the ALJ’s 3 judgment if there is substantial evidence supporting it. In other words, the existence of 4 contrary evidence is not a basis for rejecting an ALJ’s decision when substantial evidence 5 supports it. Indeed, “[w]here the evidence is susceptible to more than one rational 6 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 7 upheld.” Thomas v. Barnhart, 278 F3d. 947, 954 (9th Cir. 2002) (citations omitted). 8 How, then, does one apply this test in light of the instruction that step two is a 9 mere “de minimis” threshold – that a finding of non-severity at step two must be “clearly 10 established by medical evidence”? Webb, 433 F.3d at 687. Is the reviewing court asking 11 whether there is substantial evidence to support the ALJ’s finding that non-severity at 12 step two is “clearly established”? Or is the reviewing court asking whether there is 13 evidence in the record that clears the de minimis threshold? If the former, then an ALJ 14 decision supported by substantial evidence would be affirmed even if there was objective 15 evidence in the record suggesting that the disability is more than de minimis. If the latter, 16 the ALJ’s decision would be reversed if evidence in the record clears the de minimis 17 threshold, even if the ALJ had substantial evidence for finding that non-severity was 18 “clearly established.” Id. 19 Stated differently, what if the record, as in this case, includes a history of mental 20 health problems, continuous medication and treatment, and hospitalizations, but the ALJ 21 finds – after reviewing and carefully discussing opinions of the relevant medical experts, 22 including opinions that support his finding – that the evidence clearly establishes that the 23 impairments are not severe? Does the reviewing court affirm? Or, because the record 24 contains evidence of serious impairment, must the reviewing court conclude that the de 25 minimis threshold of step two has been cleared and the ALJ should have proceeded to 26 step three? 27 28 - 5 -  1 In Webb, after stating that a reviewing court should apply the “normal” substantial 2 evidence standard, the Ninth Circuit reached this conclusion: “the ALJ found that Webb 3 lacked a medically severe impairment or combination of impairments despite objective 4 medical evidence demonstrating back pain, hypertension, knee pain, hip pain, visual 5 disturbances, memory loss, diverticulitis, lack of sleep, difficulty performing physical 6 tasks and lack of employment from 1991 through 1997.” Id. (emphasis added). In other 7 words, it appears that the existence of objective medical evidence of a serious impairment 8 was enough to clear the de minimis threshold and result in reversal of the ALJ’s decision. 9 The Court of Appeals continued: “[a]lthough the medical record paints an incomplete 10 picture of Webb’s overall health during the relevant period, it includes evidence of 11 problems sufficient to pass the de minimis threshold of step two.” Id. (emphasis added). 12 Again, some evidence of more than de minimis problems seems to have been enough for 13 step two.1 14 This case illustrates the dilemma presented by the Webb standard. On one hand, 15 the ALJ’s 2014 decision includes a careful and thorough examination of the medical 16 record, explaining in great detail why the ALJ was persuaded that Plaintiff did not have 17 severe impairments. The ALJ’s conclusion is supported by at least three doctors – 18 Peetoom, Allison, and Fair – all of whom found Plaintiffs’ impairments to be mild. On 19 the other hand, the ALJ found, correctly, that Plaintiff had been diagnosed with bipolar 20 disorder, posttraumatic stress disorder stemming from an incident where he was taken 21 hostage as a detention officer, personality disorder, polysubstance abuse in remission, and 22 alcohol abuse in remission. 23 hospitalized for these conditions on several occasions, that he has attempted suicide and 24 engaged in self-cutting, and that he receives regular mental-health treatment through The record contains evidence that Plaintiff has been 25 26 27 1 In fairness to the Ninth Circuit, Webb included an incomplete medical record, something that Plaintiff has not complained of here. To the contrary, Plaintiff states that the “medical record in this file is voluminous.” Doc. 11 at 3. 28 - 6 -  1 medications and counseling. Added to this, of course, is the fact that the ALJ found the 2 same impairments to be severe at step two of his 2012 decision. 3 The Court believes that the ALJ’s thorough opinion is supported by substantial 4 evidence, but there is also objective evidence in the record suggesting that the 5 impairments are more than de minimis. The Court concludes that the most important 6 portion of Webb’s teaching is that the standard at step-two is de minimis. The Court also 7 concludes that the holding of Webb, as opposed to its statement of the standard, requires 8 the Court to reverse if objective evidence suggests that Plaintiff’s impairments are more 9 than de minimis. Webb, 433 F.3d at 687. Because such objective evidence exists in this 10 case – Plaintiff’s undisputed diagnoses, his repeated hospitalizations, and his suicidal and 11 self-destructive behaviors – the Court will reverse the ALJ’s decision. The ALJ should 12 not have stopped at step two. As requested by Plaintiff (Doc. 11 at 19-20), the Court will 13 remand to the agency with instructions to review the record as a whole and issue a new 14 decision. 15 IT IS ORDERED that the final decision of the Commissioner of Social Security 16 is reversed. This matter is remanded with instructions to review the record as a whole 17 and issue a new decision. The Clerk shall enter judgment accordingly and terminate this 18 case. 19 Dated this 21st day of February, 2017. 20 21 22 23 24 25 26 27 28 - 7 - 

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