Sheryl Marie Wilgus v. Carolyn W. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHERYL MARIE WILGUS,

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Case No. CV 16-6139 (SS)

Plaintiff,
v.

MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

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18

I.

19

INTRODUCTION

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21

Plaintiff Sheryl Marie Wilgus (“Plaintiff”) seeks review of

22

the final decision of the Commissioner of the Social Security

23

Administration

24

application for Disability Insurance Benefits (“DIB”). The parties

25

consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of

26

the undersigned United States Magistrate Judge.

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stated below, the decision of the Commissioner is REVERSED and

28

REMANDED for further proceedings.

(the

“Commissioner”

or

“Agency”)

denying

her

For the reasons

1

II.

2

PROCEDURAL HISTORY

3
Plaintiff filed an application for Title II DIB on January 8,

4
5

2013.

(Administrative Record (“AR”) 117-20).

In the application,

6

Plaintiff alleged a disability onset date of July 1, 2009.

7

117).

8

24, 2013, and on reconsideration on September 25, 2013.

9

92, 98-101).

(AR

The Agency denied Plaintiff’s application initially on May

an

(AR 83-

On October 15, 2013, Plaintiff requested a hearing

10

before

Administrative

Law

Judge

(“ALJ”).

(AR

104-05).

11

Plaintiff testified before ALJ Dale Garwal on February 12, 2015.

12

(AR 31, 34-44).

13

denying

14

requested review of the ALJ’s decision, which the Appeals Council

15

denied on July 13, 2016.

16

action on August 16, 2016.

On March 26, 2015, the ALJ issued a decision

Plaintiff

benefits.

(AR

(AR 1-4).

14,

24).

Plaintiff

timely

Plaintiff filed the instant

17
18

III.

19

FACTUAL BACKGROUND

20
Plaintiff was born on May 27, 1961.

21

(AR 117).

Plaintiff was

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forty-eight years old at the time of her alleged disability onset

23

date of July 1, 2009 (AR 117), and 53 years old at the time of her

24

hearing before the ALJ.

25

years of education, graduating from dental hygiene school in 1986.

26

(AR 35, 154, 161).

27

1986 until 2009.

28

//

(AR 35).

Plaintiff completed sixteen

Plaintiff worked as a dental hygienist from

(AR 154, 161).

Plaintiff stopped working in June

2

1

2009.

(AR 35).

Plaintiff alleges disability due to migraine

2

headaches and back pain.

(AR 35, 76, 84).

3
4

A.

Treating Physician’s Opinion

5
6

From November 2009 through August 2012, Plaintiff’s treating

7

physician

Kristi

Wrightson,

N.D.,

noted

that

Plaintiff

had

a

8

history of migraine headaches.

9

5-19-10, 9-17-10, 1-19-11, 7-7-11, 11-18-11, 3-6-12, 3-20-12, and

(AR 231-40 (records from 11-10-09,

10

8-29-12)).

From September 2010 through August 2012, Dr. Wrightson

11

reported that Plaintiff’s migraine headaches were without aura and

12

without mention of intractability.

13

10, 1-19-11, 7-7-11, 11-18-11, 3-6-12, and 8-29-12)).

14

Dr.

15

“without

16

mention of status migrainosus.”

(AR 245, 246, 250 (records from

17

4-15-13, 6-25-13, and 10-1-13)).

In other records, Dr. Wrightson

18

diagnosed Plaintiff with migraine headaches with aura.

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(record printed on 4-10-13 diagnosing Plaintiff with, among other

20

conditions, “migraine with aura, with intractable migraine, so

21

stated, without mention of status mig[rainosus]”); AR 251, 252,

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261 (diagnosing same on 1-8-14, 3-6-14, and 10-16-14)).

Wrightson
aura,

noted
with

that

(AR 232-37 (records from 9-17-

Plaintiff’s

intractable

migraine

migraine,

so

In 2013,

headaches
stated,

were

without

(AR 211

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24

In a Disability Determination for Social Security Treating

25

Physician’s

Migraine

Headache

Form

26

Wrightson reported that Plaintiff has left-sided migraine headaches

27

two times per week that last 24 hours.

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noted that Plaintiff has the symptoms of nausea and vomiting,
3

dated

April

(AR 244).

15,

2013,

Dr.

Dr. Wrightson

1

photophobia, phonophobia, and throbbing and pulsating.

2

Dr. Wrightson reported that Plaintiff uses Imitrex and Vicodin to

3

treat her migraine headaches and Plaintiff’s response to these

4

medications

is

5

Plaintiff’s

headaches

6

average of one day per week.

fair.

(AR

244).

interfered

Dr.
with

Wrightson

her

ability

(AR 244).

opined
to

that

work

an

(AR 244).

7
8
9

In a medical source statement dated February 14, 2014, Dr.
Wrightson

opined

maintain

that

Plaintiff’s

concentration,

abilities

and

to

withstand

deal

the

stress

and

10

public,

11

pressure of an eight-hour workday are extremely limited due to her

12

migraine headaches and anxiety.

13

opined that Plaintiff’s abilities to relate to and interact with

14

supervisors and co-workers as well as to understand, remember, and

15

carry out an extensive variety of technical and/or complex job

16

instructions are moderately limited.

(AR 253).

the

with

Dr. Wrightson also

(AR 253).

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18

B.

Non-Examining Physicians’ Opinions

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20

On May 21, 2013, Disability Determinations Service medical

21

advisor Kenneth Glass, M.D., reviewed the record and opined that

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Plaintiff has a primary physical medically determinable impairment

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of migraine headaches, non-severe.

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Disability

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Greene, M.D., reviewed the record and affirmed the finding that

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Plaintiff’s physical condition is non-severe.

Determinations

Service

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IV.
4

(AR 80).

On September 6, 2013,

medical

advisor

Francis

(AR 89, 92).

T.

1

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

2
3

To

qualify

for

disability

benefits,

a

claimant

must

4

demonstrate a medically determinable physical or mental impairment

5

that prevents her from engaging in substantial gainful activity

6

and that is expected to result in death or to last for a continuous

7

period of at least twelve months.

8

721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).

9

impairment must render the claimant incapable of performing the

10

work she previously performed and incapable of performing any other

11

substantial gainful employment that exists in the national economy.

12

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

13

U.S.C. § 423(d)(2)(A)).

Reddick v. Chater, 157 F.3d 715,
The

14
15

To decide if a claimant is entitled to benefits, an ALJ

16

conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

17

The

steps are:

18
19

(1)

Is the claimant presently engaged in substantial gainful

20

activity?

21

not, proceed to step two.

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(2)

Is

the

If so, the claimant is found not disabled.

claimant’s

impairment

23

claimant is found not disabled.

24

severe?

If

not,

If

the

three.

25

(3)

If so, proceed to step

Does the claimant’s impairment meet or equal one of the

26

specific impairments described in 20 C.F.R. Part 404,

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Subpart P, Appendix 1?

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disabled.

If so, the claimant is found

If not, proceed to step four.
5

1

(4)

Is the claimant capable of performing his past work? If

2

so, the claimant is found not disabled.

3

to step five.

4

(5)

If not, proceed

Is the claimant able to do any other work?

5

claimant is found disabled.

6

If not, the

If so, the claimant is found

not disabled.

7
8

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

9

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

10

(g)(1) & 416.920(b)-(g)(1).

11
12

The claimant has the burden of proof at steps one through four

13

and

the

Commissioner

14

Bustamante, 262 F.3d at 953-54.

15

affirmative duty to assist the claimant in developing the record

16

at every step of the inquiry.

17

claimant meets her burden of establishing an inability to perform

18

past work, the Commissioner must show that the claimant can perform

19

some

20

national economy, taking into account the claimant’s RFC, age,

21

education, and work experience.

Tackett, 180 F.3d at 1098, 1100;

22

Reddick,

20

23

416.920(g)(1).

24

vocational

25

Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2

26

(commonly known as “the grids”).

27

1157, 1162 (9th Cir. 2001).

28

(strength-related) and non-exertional limitations, the Grids are

other

work

157

that

F.3d

has

the

of

proof

721;

at

step

five.

Additionally, the ALJ has an

Id. at 954.

exists

at

burden

in

If, at step four, the

“significant

C.F.R.

numbers”

§§

in

the

404.1520(g)(1),

The Commissioner may do so by the testimony of a

expert

or

by

reference

to

the

Medical-Vocational

Osenbrock v. Apfel, 240 F.3d

When a claimant has both exertional

6

1

inapplicable and the ALJ must take the testimony of a vocational

2

expert.

3

Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing

4
5

V.

6

THE ALJ’S DECISION

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8

The ALJ employed the five-step sequential evaluation process

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and concluded at step two that Plaintiff was not disabled within

10

the meaning of the Social Security Act.

(AR 24).

At step one,

11

the ALJ found that Plaintiff had not engaged in substantial gainful

12

activity during the period from alleged disability onset of July

13

1, 2009, through date last insured of September 30, 2011.

(AR 19).

14
15

At

step

two,

the

16

determinable

17

migraines,” and anxiety.

18

that

19

impairments that significantly limited the ability to perform basic

20

work-related activities for twelve consecutive months.

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Accordingly, the ALJ concluded that Plaintiff did not have a

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“severe” impairment or combination of impairments.1

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\\

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\\

impairments

Plaintiff

did

not

ALJ

found

were

lower

(AR 19).
have

that

an

Plaintiff’s

back

pain,

medically

“occasional

The ALJ, however, also found
impairment

or

combination

of

(AR 19).

(AR 19).

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26
27
28

A physical or mental impairment is considered “severe” if it
“significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(c).
1

7

1

In reaching this decision, the ALJ reasoned that although

2

Plaintiff’s medically determinable impairments could have been

3

reasonably expected to produce the alleged symptoms, Plaintiff’s

4

statements

5

effects of the alleged symptoms were not entirely credible.

6

22). In addition, the ALJ discounted the opinions of Dr. Wrightson,

7

Plaintiff’s treating doctor, on the ground that the doctor based

8

her

9

Plaintiff’s discredited subjective complaints.

concerning

opinions

the

regarding

intensity,

Plaintiff’s

persistence

limitations

and

limiting

largely

(AR 23).

(AR

on

Instead,

10

the ALJ gave the opinions of non-examining state agency physicians

11

Drs. Glass and Greene greater weight.

12

that these opinions supported the ALJ’s conclusion that Plaintiff

13

did not have a physical impairment or combination of physical

14

impairments that significantly limited her ability to perform basic

15

work activities.

(AR 23).

The ALJ determined

(AR 23).

16
17

The ALJ concluded that Plaintiff had failed to establish

18

disability at any time from the date of onset of July 1, 2009,

19

through the date last insured of September 30, 2011.

20

Accordingly, without proceeding to the next sequential step, the

21

ALJ found that Plaintiff was not under a disability as defined by

22

20 C.F.R. § 404.1520(c).

(AR 24).

(AR 24).

23
24

VI.

25

STANDARD OF REVIEW

26
27
28

Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.
8

“[The] court may set

1

aside the Commissioner’s denial of benefits when the ALJ’s findings

2

are based on legal error or are not supported by substantial

3

evidence in the record as a whole.”

4

1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see

5

also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing

6

Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

Aukland v. Massanari, 257 F.3d

7
8
9

“Substantial evidence is more than a scintilla, but less than
a preponderance.”

Reddick, 157 F.3d at 720 (citing Jamerson v.

10

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

11

evidence which a reasonable person might accept as adequate to

12

support a conclusion.”

13

evidence supports a finding, the court must “‘consider the record

14

as a whole, weighing both evidence that supports and evidence that

15

detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

16

at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

17

1993)).

18

or reversing that conclusion, the court may not substitute its

19

judgment for that of the Commissioner.

20

21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

21

1457 (9th Cir. 1995)).

(Id.).

It is “relevant

To determine whether substantial

If the evidence can reasonably support either affirming

Reddick, 157 F.3d at 720-

22
23

VII.

24

DISCUSSION

25
26

Plaintiff challenges the ALJ’s decision on the ground that

27

the ALJ erred at step two by determining that Plaintiff’s migraine

28

headaches were not severe.

(Plaintiff’s Memorandum in Support of
9

1

Complaint (“MSC”) at 2, 3).

The Court agrees.

Accordingly, for

2

the reasons discussed below, the decision is REVERSED and REMANDED

3

for further proceedings consistent with this decision.

4
5
6

A.

The ALJ Erred By Finding Plaintiff’s Migraine Headaches NonSevere At Step Two

7
8

At step two of the five-step sequential process, a claimant

9

must make a threshold showing that her medically determinable

10

impairment or combination of impairments is “severe,” i.e., that

11

her impairment “significantly limits h[er] ability to do basic work

12

activities[.]”

13

(quoting 20 C.F.R. § 404.1521(b)).

14

“de minimis screening device to dispose of groundless claims.”

15

Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137,

16

153-54 (1987)).

Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)
By its terms, step two is a

17
18

To satisfy step two’s requirement, the claimant first must

19

prove that she has a medically determinable impairment that could

20

reasonably be expected to produce her symptoms.

21

404.1529(b).

22

“severe.”

23

that a claimant has a medically determinable impairment that could

24

reasonably be expected to produce the symptoms, we must then

25

evaluate the intensity and persistence of your symptoms so that we

26

can determine how your symptoms limit your capacity for work.”).

27

An impairment or combination of impairments is not “severe” if the

28

evidence establishes only “a slight abnormality that has no more

20 C.F.R. §

Next, the claimant must prove that the impairment is

Id. (“When the medical signs or laboratory findings show

10

1

than a minimal effect on an individual’s ability to work.”

Webb,

2

433 F.3d at 686 (quoting SSR No. 96-3(p)); see also SSR 85-28, 1985

3

WL 56856, *3 (1985).

4
5

If an ALJ determines that a claimant lacks a medically severe

6

impairment, the ALJ must find that the claimant is not disabled.

7

Webb, 433 F.3d at 686.

8

claimant’s medical impairment is “severe,” the ALJ must proceed to

9

the next step in the sequential evaluation process.

10

v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001).

If, however, the ALJ concludes that the

Id.; Edlund

11
12

Here, the ALJ found that Plaintiff’s impairments were non-

13

severe at step two and declared that Plaintiff was not disabled.

14

To reach this non-severity finding, the ALJ overlooked medical

15

evidence regarding the effects of Plaintiff’s migraine headaches.2

16

Smolen, 80 F.3d at 1290 (Step two is a “de minimis screening device

17

to

18

Because a step-two evaluation is to dispose of “groundless claims,”

19

and

20

extensively from migranes, the ALJ erred by finding Plaintiff’s

21

migranes to be “non-severe.”

22

687 (9th Cir. 2005).

dispose

the

only

of

evidence

groundless

here

claims.”)

established

that

(citation

Plaintiff

omitted).

suffered

See Webb v. Barnhart, 433 F.3d 683,

23
24
25
26
27
28

The ALJ also discredited Plaintiff’s statements regarding the
severity of her headaches on the ground that Plaintiff lacked
credibility. Because the Court concludes that this action must be
remanded due to the ALJ’s errors in evaluating the treating
physician’s opinions, the Court finds it unnecessary to address
Plaintiff’s contention that the ALJ improperly assessed her
credibility.
2

11

1

Dr. Wrightson reported that Plaintiff has left-sided migraine

2

headaches two times per week that last 24 hours.

3

doctor noted that Plaintiff’s headaches cause nausea and vomiting,

4

photophobia,

5

addition,

6

headaches, and Plaintiff’s response to these medications is fair.

7

(AR

8

interfere with her ability to work an average of one day per week.

9

(AR 244).

244).

phonophobia,

Plaintiff

Dr.

uses

Wrightson

and

throbbing

Imitrex

opined

and

and
Vicodin

that

(AR 244).

pulsating.
to

Plaintiff’s

treat

The

In
her

headaches

The doctor also opined that Plaintiff’s abilities to

10

deal with the public, maintain concentration, and withstand the

11

stress and pressure of an eight-hour work day are extremely limited

12

due to her migraine headaches and anxiety.

13

Plaintiff’s ability to relate to and interact with supervisors and

14

co-workers and her ability to understand, remember, and carry out

15

technical and complex job instructions are moderately limited.

16

253).

17

migranes were severe at step two.

18

(“Although the medical record paints an incomplete picture of

19

Webb’s overall health during the relevant period, it includes

20

evidence of problems sufficient to pass the de minimis threshold

21

of step two.”) (internal citations omitted).

22

the record was incomplete on this issue, the ALJ had a duty to

23

supplement the record, before rejecting Plaintiff’s application so

24

early in the analysis.

25

affirmative duty to supplement Webb’s medical record, to the extent

26

it was incomplete, before rejecting Webb’s petition at so early a

27

stage in the analysis.”).

(AR 253).

Further,

(AR

This evidence was sufficient to conclude that Plaintiffs’
See Webb, 433 F.3d at 687

If the ALJ determined

Webb, 433 F.3d at 687 (“[T]he ALJ had an

28
12

1

On

the

existing

2

Plaintiff’s

3

sufficient.

4

opinions as to the severity of Plaintiff’s headaches, “appear[s]”

5

to “have afforded [Plaintiff] full credibility.”

6

ALJ

7

Plaintiff’s “subjective complaints of pain” to Dr. Wrightson that

8

resulted in the doctor’s opinions, treatment, and prescriptions of

9

strong

migranes

declared

pain

record,
to

be

the

ALJ’s

non-severe

reasons
at

step

for
two

finding
are

not

The ALJ found that Dr. Wrightson, in reaching her

–

without

further

medication.

(AR

explanation

23).

The

(AR 22).
–

ALJ

that

it

discounted

The
was

Dr.

10

Wrightson’s opinions because the ALJ found Plaintiff’s subjective

11

complaints “far less than fully credible” than did Dr. Wrightson.

12

(AR 23).

13

Drs. Glass and Greene” (AR 23), both of whom determined that

14

Plaintiff’s migraine headaches were non-severe.

Instead, the ALJ gave “greater weight to the opinions of

(AR 80, 89, 92).

15
16

“A physician’s opinion of disability premised to a large

17

extent

upon

the

claimant’s

own

accounts

of

her

symptoms

and

18

limitations may be disregarded where those complaints have been

19

properly ‘properly discounted.’”

20

Admin., 169 F.3d 595, 602 (9th Cir. 1999) (quoting Fair, 885 F.2d

21

at 605).

22

Plaintiff’s credibility, the ALJ nonetheless failed adequately to

23

support the rejection of Dr. Wrightson’s opinions.

24

the record does not establish that Dr. Wrightson based her opinions

25

largely on Plaintiff’s self-reports as opposed to the doctor’s own

26

clinical observations.

27

1194, 1199-1200 (9th Cir. 2008) (error where ALJ asserted that

28

examining physician “relied too heavily on [claimant’s] subjective

Morgan v. Comm’r of Soc. Sec.

Even assuming, however, that the ALJ properly rejected

In particular,

See Ryan v. Comm’r of Soc. Sec., 528 F.3d

13

1

complaints”

2

physician

3

doctor’s clinical observations);

4

(“[t[here is no inconsistency between Webb’s complaints and his

5

doctors’ diagnoses sufficient to doom his claim as groundless under

6

the de minimis standard of step two.

7

not merely record the complaints he made to his physicians, nor

8

did

9

unfounded.”).

his

but

relied

there

was

more

physicians

nothing

heavily

dismiss

on

in

record

to

that

complaints

claimant’s

suggest

than

see also Webb, 433 F.3d at 688

Webb’s clinical records did

Webb’s

complaints

as

altogether

The documentation in the record and the degree of

10

treatment provided demonstrates that Dr. Wrightson’s opinions were

11

based on more than just the Plaintiff’s self-reports.

12
13

Finally, to the extent that the ALJ relied on the opinions of

14

non-examining

physicians

15

Wrightson’s

16

determined on review that Plaintiff’s migraine headaches were non-

17

severe.

18

physician cannot by itself constitute substantial evidence that

19

justifies the rejection of the opinion of either an examining or a

20

treating physician.”

21

F. 3d at 1202 (citing Lester, 81 F.3d at 831).

22

opinions of Drs. Glass and Greene did not constitute substantial

23

evidence

24

opinions.

opinions,

the

(AR 80, 89, 92).

to

support

Drs.

Glass

ALJ

and

erred.

Greene
Drs.

to

Glass

reject
and

Dr.

Greene

However, “the opinion of a nonexamining

Lester, 81 F.3d at 831; see also Ryan, 528

the

ALJ’s

25
26
27
28
14

rejection

of

Accordingly, the

Dr.

Wrightson’s

1

B.

Remand Is Required

2
3

The ALJ erred at step two by finding Plaintiff’s migraine

4

headaches non-severe, and the case must be remanded to remedy this

5

defect.

6
7

VIII.

8

CONCLUSION

9
10

For the foregoing reasons, IT IS ORDERED that Judgment be

11

entered

REVERSING the decision of the Commissioner and REMANDING

12

this matter for further proceedings consistent with this decision.

13

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of

14

this Order and the Judgment on counsel for both parties.

15
16

DATED:

June 2, 2017

17
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

18
19
20
21

NOTICE

22

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,

23

WESTLAW OR ANY OTHER LEGAL DATABASE.

24
25
26
27
28
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