Johnson v. Colvin

Filing 20

ORDER: IT IS ORDERED that the final decision of the Commissioner is REVERSED. The case is remanded for further proceedings. The Clerk of the Court is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 10/7/15.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
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of Social Security Administration,
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Defendant.
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Wendy Johnson,
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No. CV 14-2587-TUC-LAB
ORDER

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The plaintiff filed this action for review of the final decision of the Commissioner for
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Social Security pursuant to 42 U.S.C. § 405(g).
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The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
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received the written consent of both parties. See FED.R.CIV.P. 73; (Doc. 11)
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The court finds the final decision of the Commissioner must be reversed. The ALJ erred
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by failing to find that Johnson’s carpal tunnel syndrome is a severe impairment. The case will
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be remanded for further proceedings.
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PROCEDURAL HISTORY
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Johnson filed her application for disability insurance benefits in March of 2011. (Tr. 23)
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She alleged disability beginning March 1, 2011 due to back, knee, and ankle impairment;
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attention deficit hyperactivity disorder; headaches; diabetes; bipolar disorder; memory

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impairment; and depression. (Tr. 308)

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Her claim was denied initially (Tr. 180-183) and upon reconsideration (Tr. 185-188).

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Johnson requested review and appeared with counsel at a hearing before Administrative Law

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Judge (ALJ) Laura Speck Havens on April 25, 2013. (Tr. 55) In her decision, dated May 10,

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2013, the ALJ found Johnson was not disabled. (Tr. 34) Johnson appealed, but the Appeals

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Council denied review making the decision of the ALJ the final decision of the Commissioner.

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(Tr. 1-6) Johnson subsequently filed this action appealing the Commissioner’s final decision.

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(Doc. 1); (Tr. 1)

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Claimant’s Work History and Medical History

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Johnson was born in July of 1971. (Tr. 56) She has a high school diploma and two years

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of college. (Tr. 56) She worked as a clerk in a tax office, and she worked in a deli. (Tr. 59)

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Mental Impairments

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In January of 2011, Thompson Prout, Ph.D., reviewed the medical record for the state

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disability determination service. (Tr. 131) He found evidence of an affective disorder, an

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anxiety disorder, and a personality disorder. (Tr. 131) Prout found Johnson’s activities of daily

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living mildly restricted. Id. He opined she was moderately limited in maintaining social

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functioning and maintaining concentration, persistence, or pace. (Tr. 131)

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In July of 2011, Raymond Novak, M.D., reviewed the medical record for the state

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disability determination service. (Tr. 147) He found evidence of an affective disorder and an

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anxiety disorder. Id. He opined Johnson was moderately limited in her ability to understand,

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remember, and carry out detailed instructions. (Tr. 150) Also, she was moderately limited in

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her ability to work with others, complete a normal workday and work week, maintain

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concentration, perform at a consistent pace, interact with the general public, accept instructions,

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interact with supervisors, and get along with coworkers. (Tr. 150-151)

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In June of 2012, Randall J. Garland, Ph.D., reviewed the medical record for the state

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disability determination service. (Tr. 166) He found evidence of an affective disorder and an

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anxiety disorder. Id. Garland opined that Johnson’s activities of daily living were mildly

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restricted. Id. Also, she was moderately limited in maintaining social functioning and

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maintaining concentration, persistence, or pace. (Tr. 166)

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Physical Impairments

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In July of 2011, Jerry Dodson, M.D., reviewed the medical record and completed a

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Physical Residual Functional Capacity Assessment for the state disability determination service.

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(Tr. 148-149) He concluded Johnson could lift and/or carry 20 pounds occasionally and 10

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pounds frequently. (Tr. 148) She could stand or walk for about four hours and sit for about six

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hours in an 8-hour work day. (Tr. 148) She was limited in her lower extremities due to left

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knee and right ankle surgery. Id. She should never crouch, crawl, or climb ladders, ropes, or

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scaffolds. And she should only occasionally balance, kneel, or climb ramps or stairs. Id. She

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should avoid concentrated exposure to extreme cold, vibration, and hazards such as machinery

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or heights. (Tr. 149)

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In July of 2012, Linda A. Woodard, D.O., reviewed the medical record and completed

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a Physical Residual Functional Capacity Assessment for the state disability determination

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service. (Tr. 154, 167) She concluded Johnson could lift and/or carry 20 pounds occasionally

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and 10 pounds frequently. (Tr. 168) She could stand or walk for about three hours and sit for

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about six hours in an 8-hour work day. (Tr. 168) She was limited in her lower extremities due

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to left knee and right ankle surgery. Id. She should never crouch or crawl and should only

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occasionally kneel or climb ramps or stairs. Id. She should avoid even moderate exposure to

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hazards such as machinery or heights. (Tr. 169)

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Hearing Testimony

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On April 25, 2013, Johnson appeared with counsel at a hearing before ALJ Laura Speck

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Havens. (Tr. 55)
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Johnson testified that she has not worked since March 1, 2011, her alleged onset date.

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(Tr. 57-58) She suffers from degenerative disc disease, headaches, diabetes, COPD, bipolar

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disorder, depression, and ADHD. (Tr. 58)

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In the past, Johnson worked in a tax office doing clerical work. (Tr. 59) She received

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unemployment benefits, but she was required to return some of the money because she could

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not work and was not eligible. (Tr. 58)

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On a typical day, Johnson rises at 11:00 a.m. (Tr. 59) She can dress and bathe herself

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without help. (Tr. 59-60) She watches television five or six hours per day. (Tr. 60) She does

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not exercise. (Tr. 60) She attends church once a month. (Tr. 61)

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Johnson explained she has trouble sleeping, and she hears voices. (Tr. 63) She can walk

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for one half hour and stand for one hour. (Tr. 63) She can sit for about 15 minutes before she

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has to get up due to lower back pain. (Tr. 64) She has pain in her lower back, ankle, and left

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knee. (Tr. 64) She also has headaches nine or 10 times per month. (Tr. 64)

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People make Johnson anxious. (Tr. 65) She thinks they are out to get her, and she hears

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voices. (Tr. 65) Her depression, the voices, and her pain keep her from staying focused. (Tr.

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68)

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Ruth Van Fleet testified as a vocational expert. (Tr. 69) She explained that Johnson’s

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previous job as a deli worker was medium unskilled work. (Tr. 70) Her tax preparation work

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was sedentary and semi-skilled. Id.

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Van Fleet opined that a person who is 41 years old with a high school education and two

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years of college, who could sit for six hours, stand for three hours, walk for three hours, who

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could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds, who should

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never climb ladders or crouch or crawl, who should only occasionally climb stairs and kneel,

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who must avoid concentrated exposure to heights, machinery, dust, fumes, smoke and

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temperature extremes, who can remember and carry out simple job instructions only, and can

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only occasionally deal with the public could not perform Johnson’s past relevant work. (Tr. 70-

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71) She could, however, work as an assembler, DOT (Dictionary of Occupational Titles)

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725.684-018, or electronic equipment assembler, DOT 726.687-030. (Tr. 70-71)
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CLAIM EVALUATION

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Social Security Administration (SSA) regulations require that disability claims be

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evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520; Baxter v. Sullivan,

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923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of whether the

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claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the

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claimant is not disabled, and benefits are denied. Id.

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If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step

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two, which requires a determination of whether the claimant has a “medically severe impairment

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or combination of impairments.” 20 C.F.R. § 404.1520(a)(4). In making a determination at step

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two, the ALJ uses medical evidence to consider whether the claimant’s impairment more than

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minimally limits or restricts his or her “physical or mental ability to do basic work activities.”

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Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.

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Upon a finding of severity, the ALJ proceeds to step three, which requires a

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determination of whether the impairment meets or equals one of several listed impairments that

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the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20

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C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s impairment

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meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and

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no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the

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claimant’s impairment does not meet or equal a listed impairment, evaluation proceeds to the

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next step.

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The fourth step requires the ALJ to consider whether the claimant has sufficient residual

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functional capacity (RFC)1 to perform past work. 20 C.F.R. § 404.1520(a)(4). If yes, then the

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claim is denied. Id. If the claimant cannot perform any past work, then the ALJ must move

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to the fifth step, which requires consideration of the claimant’s RFC to perform other substantial

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Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. § 404.1545.
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gainful work in the national economy in view of claimant’s age, education, and work

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experience. 20 C.F.R. § 404.1520(a)(4).

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The ALJ’s Findings

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At step one of the disability analysis, the ALJ found Johnson “has not engaged in

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substantial gainful activity since March 1, 2011, the alleged onset date.” (Tr. 26) At step two,

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she found Johnson “has the following severe impairments: degenerative disc disease, headaches,

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diabetes, obesity, COPD, bipolar disorder, depression, and attention deficit hyperactivity

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disorder (ADHD).” (Tr. 26) At step three, the ALJ found Johnson’s impairments did not meet

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or equal the criteria for any impairment found in the Listing of Impairments, Appendix 1,

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Subpart P, of 20 C.F.R., Part 404. (Tr. 26)

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The ALJ then analyzed Johnson’s residual functional capacity (RFC). She found

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Johnson “has the residual functional capacity to perform a wide range of sedentary work . . .

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except the claimant is limited to lifting-carrying 20 pounds occasionally and 10 pounds

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frequently; is limited to sitting six hours, standing three hours, and walking three hours; is

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limited to occasional pushing-pulling with the lower extremities; is limited to occasionally

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climbing stairs [and] kneeling, can never climb ladders, crouch, and crawl; must avoid

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concentrated exposure to heights, moving machinery, dust, fumes, smoke, and temperature

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extremes; is limited to understanding and carrying out simple job instructions; and is limited to

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occasionally dealing with the public.” (Tr. 29)

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At step four, the ALJ found Johnson is not able to perform her past relevant work. (Tr.

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32) At step five, she found Johnson can work as an assembler, DOT 725.684-018, or electronic

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assembler, DOT 726.687-030. Accordingly, she found Johnson was not disabled. (Tr. 33)

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STANDARD OF REVIEW

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An individual is entitled to disability benefits if he or she demonstrates, through

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medically acceptable clinical or laboratory standards, an inability to engage in substantial

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gainful activity due to a physical or mental impairment that can be expected to last for a
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continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “[A] claimant will be

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found disabled only if the impairment is so severe that, considering age, education, and work

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experience, that person cannot engage in any other kind of substantial gainful work which exists

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in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The

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decision to deny benefits “should be upheld unless it contains legal error or is not supported by

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substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence

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is defined as “such relevant evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider

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the entire record as a whole and may not affirm simply by isolating a specific quantum of

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supporting evidence.” Id.

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In evaluating evidence to determine whether a claimant is disabled, the opinion of a

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treating physician is entitled to great weight. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir.

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1993). The ALJ may reject a treating physician’s uncontradicted opinion only if she sets forth

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clear and convincing reasons for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

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If the treating physician’s opinion is contradicted by another doctor, the ALJ may reject that

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opinion only if she provides specific and legitimate reasons supported by substantial evidence

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in the record. Lester, 81 F.3d at 830. No distinction is drawn “between a medical opinion as

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to a physical condition and a medical opinion on the ultimate issue of disability.” Rodriguez

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v. Bowen, 876 F.2d 759, 761 n.7 (9th Cir. 1989).

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“The opinion of an examining physician is, in turn, entitled to greater weight than the

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opinion of a non[-]examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

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“[T]he Commissioner must provide ‘clear and convincing’ reasons for rejecting the

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uncontradicted opinion of an examining physician.” Id. “[T]he opinion of an examining doctor,

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even if contradicted by another doctor, can only be rejected for specific and legitimate reasons

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that are supported by substantial evidence in the record.” Id. at 830-31.
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“Where medical reports are inconclusive, questions of credibility and resolution of

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conflicts in the testimony are functions solely of the [Commissioner].” Magallanes, 881 F.2d

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747, 751 (9th Cir. 1989) (punctuation omitted). The Commissioner’s finding that a claimant is

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less than credible, however, must have some support in the record. See Light v. Social Security

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Administration, 119 F.3d 789 (9th Cir. 1997).

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The ALJ need not accept the claimant’s subjective testimony of disability, but if she

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decides to reject it, “she must provide specific, cogent reasons for the disbelief.” Lester, 81

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F.3d at 834. “Unless there is affirmative evidence showing that the claimant is malingering, the

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Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.”

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Id. “General findings are insufficient; rather, the ALJ must identify what testimony is not

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credible and what evidence undermines the claimant’s complaints.” Id.

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DISCUSSION

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Johnson argues in her opening brief, among other things, that the ALJ erred at step two

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of the disability analysis by failing to find her carpal tunnel syndrome a severe impairment. The

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court agrees and will remand for further proceedings. The court does not reach Johnson’s

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alternate allegations of error.

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“[T]he step-two inquiry is a de minimis screening device to dispose of groundless

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claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An impairment . . . can be

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found ‘non severe’ only if the evidence establishes a slight abnormality that has no more than

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a minimal effect on an individual’s ability to work.” Id. (internal punctuation modified); see

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also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (“[A]n ALJ may find that a claimant

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lacks a medically severe impairment or combination of impairments only when [her] conclusion

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is ‘clearly established by medical evidence.’”).

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The regulations explain that a severe impairment “significantly limits your physical or

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mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work activities

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include, among other things, “[p]hysical functions such as walking, standing, sitting, lifting,

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pushing, pulling, reaching, carrying, or handling. 20 C.F.R. § 404.1521(b)(1) (emphasis

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added).

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The medical record in this case contains treatment records from Stephen A. Shapiro,

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M.D., documenting examination and treatment for right wrist pain. (Tr. 1619- 1625, 1628-

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1629) In July of 2012, Johnson complained of “numbness and tingling in a stocking and glove

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distribution from her mid forearm to her fingertips.” (Tr. 1628) She had a positive Tinel’s sign

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indicating nerve damage. (Tr. 1625); The Merck Manual of Diagnosis and Therapy 1491 (17th

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ed. 1999). Shapiro ordered nerve conduction studies and an MRI. (Tr. 1619- 1625, 1628-1629)

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Johnson has received cortisone injection, physical therapy, and bracing, but she reports her pain

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was not helped by these treatments. (Tr. 1620) In August of 2012, Eugene Y. Mar, M.D.,

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diagnosed “mild bilateral carpal tunnel syndrome” based on nerve conduction studies. (Tr.

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1621)

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Based on the medical record, it appears that Johnson’s carpal tunnel syndrome has more

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than a minimal effect on her ability to do basic work activities such as handling. Or to use

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Webb’s formulation of the rule, the ALJ’s implicit conclusion that Johnson’s carpal tunnel

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syndrome is not severe is not “clearly established by medical evidence.” Webb v. Barnhart, 433

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F.3d 683, 687 (9th Cir. 2005). Accordingly, the ALJ committed error by failing to find that

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Johnson’s carpal tunnel was a severe impairment.

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The Commissioner correctly points out that this error would be harmless if the ALJ

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considered the effect of Johnson’s carpal tunnel later in the disability analysis when analyzing

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her residual functional capacity (RFC). (Doc. 18, p. 5); see, e.g., Lewis v. Astrue, 498 F.3d 909,

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911 (9th Cir. 2007). It does not appear, however, that she did that. In the hypothetical presented

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to the vocational expert, the ALJ adopted all the physical limitations listed by the non-

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examining consultant physician, Linda A. Woodard, D.O. (Tr. 167-169) Woodard, however,

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did not consider whether Johnson’s handling was limited by her carpal tunnel syndrome because

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those medical records were not available when Woodard made her recommendation in June of

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2012. See (Tr. 157-162, 167-169, 1610) It appears that the carpal tunnel treatment records,

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B34F, were included in the record some time after March of 2013. Id. By adopting Woodard’s
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opinion without further review of the record, it appears that the ALJ failed to consider the effect

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that the carpal tunnel syndrome has on Johnson’s functional limitations. See Godin v. Astrue,

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2013 WL 1246791, 2 (D.Conn. 2013) (“The applicable regulations provide that every medical

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source received by the Commission will be considered in evaluating a disability claim.”).

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This error is particularly important because at step five of the disability analysis, the ALJ

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found that Johnson could perform the job of assembler or electronic assembler. (Tr. 33) It

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seems likely that those jobs would ordinarily require “a high level of finger dexterity and

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frequently handling and fingering.” Betsey v. Astrue, 2008 WL 5231839, 4 (M.D.Fla. 2008).

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It is therefore possible that Johnson’s carpal tunnel syndrome could affect her ability to perform

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those jobs. At the very least, her condition could limit the number of those jobs available to her.

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The Commissioner further argues that Johnson failed to affirmatively establish that her

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impairment results in specific functional limitations affecting her ability to work. At step-five

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of the disability analysis, however, the Commissioner has the burden of proving that Johnson

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can perform work that exists in significant numbers in the national economy. Bruton v.

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Massanari, 268 F.3d 824, 828 n. 1 (9th Cir. 2001). She did not do that here. The ALJ should

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expand the record to determine if Johnson’s carpal tunnel syndrome affects her ability to work.

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See, e.g., Parsons v. Colvin, 2013 WL 5310265, 11 (D.Or. 2013) (“On remand, the ALJ should

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better develop the record regarding what, if any, manipulative, handling and/or fingering

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limitations the bilateral carpal tunnel syndrome caused for Parsons.”).

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Johnson argues that if the decision of the Commissioner is reversed, then the case should

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be remanded for computation of benefits. Here, however, it is not clear from the record that

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Johnson is indeed disabled. The case therefore will be remanded for further proceedings. See

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Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014).

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IT IS ORDERED that the final decision of the Commissioner is reversed. The case is
remanded for further proceedings.
The Clerk of the Court is directed to prepare a judgment and close this case.
DATED this 7th day of October, 2015.
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