Karen Lucille Rice v. Carolyn W. Colvin

Filing 26

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. (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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KAREN LUCILLE RICE,

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No. CV 17-00353 SS

Plaintiff,

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v.

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NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,

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MEMORANDUM DECISION AND ORDER

Defendant.

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I.

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INTRODUCTION

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Plaintiff Karen Lucille Rice (“Plaintiff”) seeks review of the
final

decision

of

the

Commissioner

of

the

Social

Security

Administration (hereinafter the “Commissioner” or the “Agency”)

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
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denying her application for Disability Insurance Benefits (“DIB”).
The parties consented, pursuant to 28 U.S.C. § 636(c), to the
jurisdiction of the undersigned United States Magistrate Judge.

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For the reasons stated below, the decision of the Commissioner is
REVERSED and REMANDED for further proceedings.

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II.

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STANDARD OF REVIEW

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

“The court may set aside

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

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based on legal error or are not supported by substantial evidence

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in the record as a whole.”

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1035 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097

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(9th Cir. 1999)); accord Smolen v. Chater, 80 F.3d 1273, 1279 (9th

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Aukland v. Massanari, 257 F.3d 1033,

Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.
1989).

However, the court must “affirm the denial of disability

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benefits

if

Commissioner

it

is

applied

supported
the

by

correct

substantial
legal

evidence

standards.”

and
Marci

the
v.

Chater, 93 F.3d 540, 543 (9th Cir. 1996).

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

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.
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1997)).

It is “relevant evidence which a reasonable person might

accept as adequate to support a conclusion.”

Id.

To determine

whether substantial evidence supports a finding, the court must

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“consider the record as a whole, weighing both evidence that
supports and evidence that detracts from the [Commissioner’s]

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conclusion.”

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2 F.3d 953, 956 (9th Cir. 1993).

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support either affirming or reversing that conclusion, the court

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may not substitute its judgment for that of the Commissioner.

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Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan,
If the evidence could reasonably

Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

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III.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To qualify for disability benefits, a claimant must demonstrate
a

medically

determinable

physical

or

mental

impairment

that

prevents her from doing a substantial gainful activity, and that

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is expected to result in death or last for a continuous period of
at least twelve months.

Reddick, 157 F.3d at 721 (citing 42 U.S.C.

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§ 423 (d) (1) (A)).

The impairment must render the claimant

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incapable of performing any other substantial gainful employment

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that exists in the national economy.

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(citing 42 U.S.C. § 423 (d) (2) (A)).

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Tackett, 180 F.3d at 1098

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To decide if a claimant is entitled to benefits, an ALJ conducts
a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920.

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(1) Is the claimant presently engaged in a substantial gainful

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activity?

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no, proceed to step two.

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If yes, the claimant is found not disabled.

(2) Is the claimant’s impairment severe?

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is found not disabled.

If

If no, the claimant

If yes, proceed to step three.

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(3) Does the claimant’s impairment meet or equal one of the

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specific

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impairments

described

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Subpart P, Appendix 1?

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disabled.

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in

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C.F.R.

Part

404,

If yes, the claimant is found

If not, proceed to step four.

(4) Is the claimant capable of performing his past work?

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yes, the claimant is found not disabled.

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If

If no, proceed to

step five.

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(5) Is the claimant able to do any other work?

If not, the

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claimant is found disabled.

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not disabled.

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If yes, the claimant is found

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

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262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R.
§§ 404.1520 (a) – (g) (1) & 416.920 (a) – (g) (1).

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

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and

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

the

Commissioner

has

the

burden

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of

proof

at

step

five.

“Additionally, the ALJ has an

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affirmative duty to assist the claimant in developing the record
at every step of the inquiry.”

Id. at 954.

If, at step four, the

claimant meets his burden of establishing an inability to perform

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

other

work

that

exists

in

“significant

numbers”

in

the

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national economy, taking into account the claimant’s residual

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functional capacity (“RFC”), age, education, and work experience.

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Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20

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C.F.R. §§ 404.1520 (g) (1), 416.920 (g) (1).

The Commissioner may

do so by the testimony of a vocational expert (“VE”) or by reference
to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part
404,

Subpart

P,

Appendix

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(commonly

known

as

“the

Grids”).

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Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

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claimant has both exertional and non-exertional limitations, the

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Grids are inapplicable and thus the ALJ must take VE testimony.

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

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

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When a

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IV.

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DISCUSSION

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A.

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The ALJ Failed To Properly Assess Plaintiff’s Fibromyalgia
As A Severe Impairment At Step-Two Of The Evaluation

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Plaintiff contends that the ALJ erred at step two by finding

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her

fibromyalgia

was

a

non-severe

impairment.

(Plaintiff’s

Memorandum In Support of the Complaint (“Pl. MSO”) at 1, 14-17).
The Court agrees.2

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By its own terms, the evaluation at step two is a de minimis
test — intended to weed out the most minor of impairments.

See

Bowen v. Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed.
2d 119 (1987) (O’Connor, J. concurring); Edlund v. Massanari, 253

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F.3d 1152, 1158 (9th Cir. 2001) (“We have defined the step-two
inquiry as a de minimis screening device to dispose of groundless

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claims.”) (citing Smolen, 80 F.3d at 1290).

An impairment is not

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severe only if the evidence establishes a slight abnormality that

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has only a minimal effect on an individual's ability to work.

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Plaintiff also contends that the ALJ erred in improperly
assessing the opinions of treating physicians Drs. Wheeler and
Levy. (Pl. MSO at 17-23). Plaintiff further argues that the ALJ
erroneously engaged in picking and choosing through the evidence
in order to support his desired RFC. (Pl. MSO at 23-25). However,
it is unnecessary to reach Plaintiff’s arguments on these grounds,
as the matter is remanded for the alternative reasons discussed at
length in this Order.
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Smolen,

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F.3d

at

1290

(internal

quotations

and

citations

omitted).

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Here, the ALJ applied more than a de minimis test at step two

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when he concluded that Plaintiff’s fibromyalgia was not severe.

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reaching this conclusion, the ALJ acknowledged that Dr. Joshua

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Levy, M.D., diagnosed Plaintiff with fibromyalgia.

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(AR 24).

In

The

ALJ nonetheless found the impairment as non-severe because Dr.
Levy’s “treatment notes fail to provide longitudinal context in

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the form of medical signs and findings, which would show or
otherwise support the functional limitations resulting from such

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diagnosis.”

(AR 24).

However, though Dr. Levy’s handwriting is

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difficult to read, the treatment notes clearly indicate that Dr.

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Levy diagnosed and treated Plaintiff for fibromyalgia from at least

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December 2014 to June 2015.

(See AR 367, 371, 373, 376, 383, 513).

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Moreover,

Dr.

Levy

opined

that

Plaintiff

has

physical

limitations resulting from her fibromyalgia. (See AR 509-13).

In

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particular, Dr. Levy opined Plaintiff is able to sit for 20 minutes

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at a time for a total of 3 hours in an 8-hour workday; stand/walk

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for 10 minutes at a time for a total of 2 hours in an 8-hour

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workday; and lift and carry less than 10 pounds frequently, 10

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pounds occasionally, and never over 10 pounds.

(AR 509-10).

Further, Plaintiff will need to take 3-4 unscheduled breaks during

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an 8-hour workday for 15 minutes at a time.

(AR 509).

Finally,

Dr. Levy opined that due to her fibromyalgia, Plaintiff is limited
in the use of her hands and is not capable for working an 8-hour

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day, 5 days a week.

(AR 510).

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As the Ninth Circuit recently observed in Revels v. Berryhill,

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___ F.3d ___, 2017 WL 4819137 (9th Cir. October 26, 2017):

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evaluating

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whether

a

claimant’s

residual

functional

“In

capacity

renders them disabled because of fibromyalgia, the medical evidence
must be construed in light of fibromyalgia’s unique symptoms and
diagnostic methods . . . the failure to do so is error.”
2017 WL 4819137 at *10.

Revels,

Here, the ALJ failed to consider the

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unique medical evidence of fibromyalgia properly at step-two of

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the evaluation.

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Because a step-two evaluation is to dispose of “groundless
claims,” and the evidence here establishes that Plaintiff suffered
from fibromyalgia resulting in limitations in her ability to work,

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the

ALJ

erred

fibromyalgia.

in

the

step-two

analysis

regarding

Plaintiff’s

See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.

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2005) (“An impairment or combination of impairments may be found

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‘non severe only if the evidence establishes a slight abnormality

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that has no more than a minimal effect on an individual’s ability

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to work.’”) (emphasis in original).

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Remand is required.

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B.

Remand Is Required To Remedy Defects In The ALJ’s Decision

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Remand for further proceedings is appropriate where additional

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proceedings could remedy defects in the Commissioner’s decision.
See Leon v. Berryhill, ___ F.3d ___, 2017 WL 515294 at * 5, (9th

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Cir. November 7, 2017); Harman v. Apfel, 211 F.3d 1172, 1179 (9th

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Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).

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Because the ALJ improperly evaluated the severity of Plaintiff’s

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fibromyalgia under step two of the evaluation, the case must be

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REMANDED to remedy this and other defects.

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For the foregoing reasons, the matter is remanded for further

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proceedings.

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of

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Plaintiff’s ability to work.

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On remand, the ALJ must include fibromyalgia as one

Plaintiff’s

severe

impairments

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and

analyze

its

impact

on

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V.

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CONCLUSION

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Consistent with the foregoing, and pursuant to sentence four

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of 42 U.S.C. § 405(g),1 IT IS ORDERED that judgment be entered

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REVERSING the decision of the Commissioner and REMANDING this

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matter for further proceedings consistent with this decision.

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

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IT

Order and the Judgment on counsel for both parties.

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DATED:

November 13, 2017

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/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE.

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This sentence provides: “The [district] court shall have power
to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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