John E. Martinez v. Carolyn W. Colvin

Filing 27

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. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN E. MARTINEZ,

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No. EDCV 16-1615 SS

Plaintiff,

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v.

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MEMORANDUM DECISION AND ORDER

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

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Defendant.

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I.

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INTRODUCTION

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John E. Martinez (“Plaintiff”) seeks review of the final

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decision of the Commissioner of the Social Security Administration

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(the “Commissioner” or the “Agency”) denying his application for

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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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social security benefits.

The parties consented, pursuant to

28 U.S.C. § 636(c), to the jurisdiction of the undersigned United
States Magistrate Judge.

(Dkt. Nos. 12-13).

For the reasons

stated below, the decision of the Commissioner is REVERSED and this
case is REMANDED for further administrative proceedings consistent
with this decision.

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II.

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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 him from engaging in substantial gainful activity
and that is expected to result in death or to last for a continuous
period of at least twelve months.
721

(9th

Cir.

1998)

(citing

42

Reddick v. Chater, 157 F.3d 715,
U.S.C.

§ 423(d)(1)(A)).

The

impairment must render the claimant incapable of performing the
work he previously performed and incapable of performing any other
substantial gainful employment that exists in the national economy.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing
42 U.S.C. § 423(d)(2)(A)).

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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.

steps are:

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The

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(1)

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Is the claimant presently engaged in substantial
gainful activity?

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disabled.

If so, the claimant is found not

If not, proceed to step two.

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(2)

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Is the claimant’s impairment severe?
claimant is found not disabled.

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If not, the

If so, proceed to

step three.

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(3)

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Does the claimant’s impairment meet or equal one of
the specific impairments described in 20 C.F.R.

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Part 404, Subpart P, Appendix 1?

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claimant is found disabled.

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If so, the

If not, proceed to

step four.

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(4)

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Is the claimant capable of performing his past
work?

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If so, the claimant is found not disabled.

If not, proceed to step five.

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(5)

Is the claimant able to do any other work?

If not,

the claimant is found disabled. If so, the claimant
is found not disabled.

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Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R.
§§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

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The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step five.
Bustamante, 262 F.3d at 953-54.

Additionally, the ALJ has an

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

other

work

that

exists

in

“significant

numbers”

in

the

national economy, taking into account the claimant’s residual
functional capacity (“RFC”), age, education, and work experience.
Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20
C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

The Commissioner may do

so by the testimony of a vocational expert or by reference to the
Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,
Subpart P, Appendix 2 (commonly known as “the Grids”).
v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).
has

both

exertional

(strength-related)

and

Osenbrock

When a claimant
non-exertional

limitations, the Grids are inapplicable and the ALJ must take the
testimony of a vocational expert.

Moore v. Apfel, 216 F.3d 864,

869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340
(9th Cir. 1988)).

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III.
THE ALJ’S DECISION

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The ALJ employed the five-step sequential evaluation process
in evaluating Plaintiff’s case.

At step one, the ALJ found that

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Plaintiff met the insured status requirements of the Act through
December 31, 2012, and had not engaged in substantial gainful
activity

since

January

17,

2012,

his

alleged

onset

date.

(Certified Administrative Record (“AR”) 18).

At step two, the ALJ

found

severe

that

bilateral
disease;

Plaintiff

hip
distal

had

degenerative

the

following

disease;

polyneuropathy;

lumbar

inferior

impairments:

degenerative

surface

tear

of

disc
the

posterior horn of the medical meniscus of the right knee in January
2012.

(AR 18).

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At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (AR 19).

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At step four, the ALJ determined that Plaintiff had the RFC
to perform a light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can perform occasional postural activities;
no ladders, ropes or scaffolds; and he would require the use of a
cane for ambulation.

(AR 19).

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The ALJ determined that Plaintiff could perform his past
relevant work as an auto body shop owner/manager (DOT 807.137-019)
as normally performed, but not as actually performed.

(AR 21-22).

Accordingly, the ALJ concluded that Plaintiff was not disabled
under the Agency’s rules.

(AR 22).

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IV.

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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 decision when the ALJ’s findings are based on
legal error or are not supported by “substantial evidence” in the
record as a whole.

Aukland v. Massanari, 257 F.3d 1033, 1035

(9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,
885 F.2d 597, 601 (9th Cir. 1989)).

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

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

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

It is “relevant

evidence which a reasonable person might accept as adequate to
support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066;
Smolen,

80

F.3d

at

1279).

To

determine

whether

substantial

evidence supports a finding, the court must “‘consider the record
as a whole, weighing both evidence that supports and evidence that
detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d
at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
1993)).

If the evidence can reasonably support either affirming

or reversing that conclusion, the court may not substitute its
judgment for that of the Commissioner.

Reddick, 157 F.3d at 720-

21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).
V.

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1

DISCUSSION

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A. The ALJ Erred By Finding Plaintiff’s Diabetes Non-Severe At

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Step Two

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Plaintiff contends that the ALJ erred at step two by finding
that

his

diabetes

mellitus

was

a

non-severe

impairment.

(Plaintiff’s Memorandum In Support of Complaint (Pl. MSO) at 6).
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, 153-154 (1987); Edlund v. Massanari, 253
F.3d 1152, 1158 (9th Cir.2001) (stating that the step two inquiry
is a de minimis screening device to dispose of groundless claims)
(quoting Smolen, 80 F.3d at 1290).

An impairment is not severe

only if the evidence establishes a slight abnormality that has only
a minimal effect on an individual's ability to work. Smolen, 80
F.3d at 1290 (internal quotations and citations omitted).

Here,

the ALJ applied more than a de minimis test at step two when he
determined that Plaintiff's diabetes mellitus is non-severe.

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Plaintiff also argues that the ALJ erred by finding his
anemia to be a non-severe impairment. (Pl. MSO 5.).
Plaintiff
similarly contends that the ALJ erred in improperly assessing his
credibility. (Id. at 6-9). 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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The

ALJ

stated

that

Plaintiff’s

“medically

determinable

impairment of diabetes mellitus causes only a slight abnormality
that would have no more than a minimal effect on his ability to
work.”

(AR 19).

To reach this non-severity finding, the ALJ

overlooked medical evidence regarding the effects of Plaintiff's
diabetes.

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As

a

threshold

matter,

established by the record.

Plaintiff’s

diabetes

is

well

Lab results from 2011 through late 2013

document hemoglobin levels “consistent with diabetes.”

(AR 299,

304, 521, 535, 540, 547). Plaintiff testified that he takes insulin
and oral medication for his diabetes.
started taking insulin in 2011.

(AR 48).

He stated that he

(AR 48-49).

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Moreover,

the

medical

record

indicates

that

diabetes has significant effects on his health.

Plaintiff’s

On August 10,

2012, Plaintiff’s internist, Dr. Damayanthi Seneviratne, noted his
diagnoses as “diabetes mellitus” and “diabetic neuropathy” on
Plaintiff’s disability insurance benefits form.

(AR 516).

December 5, 2012, Dr. Seneviratne again noted the same.

On

(AR 522).

Medical records dated October 10, 2013 and March 27, 2014 list
Plaintiff’s diagnoses as diabetic nephropathy and non-insulindependent diabetes mellitus (NIDDM) peripheral neuropathy, among
others.

(AR 542, 553).

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Diabetic nephropathy constitutes “damage to . . . kidneys
caused by diabetes. In severe cases, it can lead to kidney failure.”

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See

http://www.webmd.com/diabetes/tc/diabetic-nephropathy-topic-

overview#1.

Likewise, peripheral neuropathy is defined as “nerve

damage caused by chronically high blood sugar and diabetes. It
leads to numbness, loss of sensation, and sometimes pain in your
feet,

legs,

or

hands.”

See

http://www.webmd.com/diabetes/peripheral-neuropathy-risk-factorssymptoms#1.
condition

Thus,

does

the

not

ALJ's

fairly

brief

represent

discussion
the

of

Plaintiff’s

significance

of

his

diabetes and the limitations arising from it, as reflected in the
record.

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Because a step-two evaluation is to dispose of “groundless
claims,” and the evidence here established that Plaintiff suffered
from a significant form of diabetes, the ALJ erred by finding
Plaintiff's diabetes to be “non-severe.” See Webb v. Barnhart, 433
F.3d 683, 687 (9th Cir. 2005).
sufficient

for

the

ALJ

to

The evidence in the record was

conclude

that

Plaintiff’s

diabetes

mellitus was a severe impairment at step two under the de minimis
test.

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For the foregoing reasons, the matter is remanded for further
proceedings. On remand, the ALJ must evaluate Plaintiff’s diabetes
as a severe impairment at step-two and include limitations imposed
by

Plaintiff’s

Plaintiff.

The

diabetes
ALJ

in

must

the

ALJ’s

consider

diabetes on his RFC.

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the

overall
impact

evaluation
of

of

Plaintiff’s

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B. The ALJ Erred By Finding That Plaintiff Could Return To His
Past Relevant Work As An Auto Shop Manager

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At step four, the ALJ determined that Plaintiff could perform

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his past relevant work as an auto body shop owner/manager as

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normally performed, but not as actually performed.

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Plaintiff contends that the ALJ’s conclusion at step four is not

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supported by substantial evidence.

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argues that the numerous activities required in his past work are

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inconsistent with his need to utilize a cane when ambulating.

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(P. MSO at 3).

(AR 21-22).

Plaintiff also

(Id.

at 4).

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At the administrative hearing, the VE testified that Plaintiff

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previously worked as a manager of an auto body shop, DOT 807.137-

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010.

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7, light per the DOT but “performed at medium.”

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testified that he was the owner of a body shop for about twelve

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years.

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write

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vehicles, and pick up materials.

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Plaintiff lifted twenty-five to thirty pounds. (Id.). On a typical

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day, Plaintiff was on his feet for about six or seven hours. (Id.).

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Plaintiff testified that sometimes he would be at the business six

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days a week.

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responsible for hiring and firing people.

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track of employees’ hours as well.

(AR 42).

The VE testified that the position is skilled, SVP

(AR 31).
estimates,

(Id.).

Plaintiff

Plaintiff stated that, in that role, he would
answer

(AR 34).

the

phone,

talk

(Id.).

to

customers,

mask

On a regular basis,

Plaintiff also testified that he was
(AR 40).

He would keep

(Id.)

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At the fourth step of the sequential evaluation, the claimant

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bears the burden of demonstrating that he can no longer perform
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his

past

relevant

work

“either

as

actually

performed

or

as

generally performed in the national economy.” Carmickle v. Comm'r
Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 2008). “Although the
burden of proof lies with the claimant at step four, the ALJ still
has a duty to make the requisite factual findings to support his
conclusion.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001).
This requires the ALJ to compare Plaintiff's RFC to the physical
and mental demands of Plaintiff's past relevant work.

“Past

relevant work” is work that a claimant has “done within the past
15 years, that was substantial gainful activity, and that lasted
long enough for [the claimant] to learn to do it.” 20 C.F.R. §§
404.1560(b),

416.960(b);

see

also

20

C.F.R.

§§

404.1560(a)

416.965(a).

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The ALJ determined that Plaintiff could not perform his past
work as it was actually performed.

(AR 21).

However, this Court

finds that Plaintiff is also incapable of doing his past work as
it is generally performed, as according to the VE’s testimony.
Therefore, it was error for the ALJ to conclude that Plaintiff can
perform his past relevant work, even considering the limitations
provided in the RFC.

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The DOT listing provided by the VE states that an individual
in this position “supervises and coordinates activities of workers
engaged in repairing and painting damaged bodies and body parts of
automotive vehicles.”

(Plaintiff’s Exhibit (“Pl. Ex”) A at 1).

The “Master Description” of this position also states that an

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individual in this position “[m]ay set up machines and equipment.”
(Id.).
“[m]ay

Under “Physical Demands,” the DOT states that this positon
involve

pulling.”
are

significant

(Id. at 4).

inconsistent

ambulating.

with

standing,

walking,

pushing,

and/or

This Court finds that these requirements
Plaintiff’s

need

to

use

a

cane

while

The evidence of record, and Plaintiff’s corresponding

RFC, are clearly inconsistent with a requirement that he engage in
significant standing, walking, pushing, and/or pulling.

They are

similarly inconsistent with a potential need for him to set up
machines and equipment.

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For the foregoing reasons, the matter is remanded for further
proceedings.

This Court finds that Plaintiff cannot do his past

relevant work, even with the current RFC.

the ALJ must seek testimony from a VE to determine what work is
available to Plaintiff, given his RFC, as possibly modified by the
ALJ’s findings once he considers Plaintiff’s diabetes as a severe
impairment.

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Therefore, on remand,

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VI.

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CONCLUSION

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Accordingly, 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.

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DATED:

June 20, 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 LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.

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