Jace Nash v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is reversed and this case is remanded. [See order for further details.] (et)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION

JACE N.,

No. ED CV 18-01497-DFM

Plaintiff,

MEMORANDUM OPINION AND
ORDER

v.
ANDREW M. SAUL, Commissioner
of Social Security,
Defendant.

Jace N. (“Plaintiff”) appeals from the Social Security Commissioner’s
final decision denying his application for Supplemental Security Income
(“SSI”).1 The Commissioner’s decision is reversed and this case is remanded.
BACKGROUND
Plaintiff applied for SSI on August 11, 2014, alleging disability beginning
on March 1, 2011. See Dkt. 16, Administrative Record (“AR”) 80-93. After
being denied initially and on reconsideration, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). See AR 112-40. A hearing was

The Court partially redacts Plaintiff’s name in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the
Committee on Court Administration and Case Management of the Judicial
Conference of the United States.
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held on February 6, 2017, at which Plaintiff and an impartial vocational expert
testified. See AR 47-79. On May 30, 2017, the ALJ issued a written decision
finding Plaintiff ineligible for disability benefits. See AR 30-45.
The ALJ found that Plaintiff had not engaged in substantial gainful
activity since his application date. See AR 35. The ALJ next found that
Plaintiff had the severe impairments of degenerative disc disease of the lumbar
spine and fractures of the upper extremities. See id. The ALJ determined that
Plaintiff had the residual functional capacity (“RFC”) to perform medium
work with the following limitations: “lift/carry 50 pounds occasionally, 25
pounds frequently; can stand/walk for 6 hours out of an 8-hour day; can [s]it
for 6 hours out of an 8-hour day; can perform all postural activities on a
frequent basis.” AR 36.
Based on the evidence of record, the ALJ found that Plaintiff could
perform his past relevant work as an odd job worker (DOT 301.687-010), both
generally and as actually performed. See AR 39. In the alternative, the ALJ
found that Plaintiff could perform jobs existing in the national economy,
including hand packager (DOT 920.597-018), laundry laborer (DOT 361.687018), and industrial cleaner (DOT 381.687-018). See AR 40.
The Appeals Council denied review of the ALJ’s decision, which
became the final decision of the Commissioner. See AR 1-6. This action
followed. See Dkt. 1.
DISCUSSION
The parties dispute whether the ALJ properly (1) found that Plaintiff had
no severe mental impairments, (2) determined Plaintiff’s RFC, and (3)
developed the record. See Dkt. 20, Joint Statement (“JS”) at 2-3.
Severe Mental Impairment
Plaintiff argues that the ALJ erred in evaluating his mental impairments
and in finding that those impairments were not severe. See JS at 3-5.
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At Step Two, the claimant bears the burden of showing that he has a
medically severe impairment or combination of impairments. See 20 C.F.R.
§ 416.920(a)(4)(ii), (c). “An impairment is not severe if it is merely ‘a slight
abnormality (or combination of slight abnormalities) that has no more than a
minimal effect on the ability to do basic work activities.’” Webb v. Barnhart,
433 F.3d 683, 686 (9th Cir. 2005) (quoting SSR No. 96-3(p) (1996)).
In making this determination as to claimed mental impairments, an ALJ
is required to follow the process set forth in 20 C.F.R. § 416.920a. See Keyser
v. Comm’r SSA, 648 F.3d 721, 725 (9th Cir. 2011). This regulation requires
the application of a special psychiatric review technique beginning with a
determination as to whether an applicant has a medically determinable mental
impairment. See 20 C.F.R. § 416.920a(b). Next, the ALJ must rate the degree
of limitation for four distinct functional areas, see id. § 416.1920a(c), and then
determine the severity of the mental impairment (in part, based on the degree
of limitation in functioning), see id. § 416.1920a(d).
“When evaluating psychiatric impairments such as . . . depression, the
ALJ must follow a ‘special psychiatric review technique’ and document his
findings and conclusions in his decision.” Chaudhry v. Astrue, 688 F.3d 661,
670 (9th Cir. 2012) (quoting Keyser, 648 F.3d at 725). “Specifically, the written
decision must incorporate the pertinent findings and conclusions based on the
technique and must include a specific finding as to the degree of limitation in
each of the functional areas.” Keyser, 648 F.3d at 725 (quotation and citation
omitted). Failure to do so “is not harmless if the claimant has a colorable claim
of mental impairment.” Id. at 726 (quotation and citation omitted).
Here, the ALJ did not employ this procedure. Instead, the ALJ found
that Plaintiff’s impairments of depressive disorder and polysubstance
dependence were not severe, as Plaintiff sought “minimal mental health
treatment or counseling,” and had “never been hospitalized” nor “alleged any
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period where he was unable to function for an extended period due to any
mental health issues.” AR 35.
The Commissioner concedes that the ALJ “should have performed a 20
C.F.R. § 416.920a analysis,” but argues that the error is harmless “because
there is no evidence suggesting more than moderate mental limitations.” JS at
7. As described in Keyser, however, an ALJ’s failure to apply the special
psychiatric review technique is not harmless “if the claimant has a colorable
claim of mental impairment.” 648 F.3d at 726 (quotation and citation
omitted). A claim is colorable if it is not “wholly insubstantial, immaterial, or
frivolous.” Boettcher v. Sec’y of Health & Human Servs., 759 F.2d 719, 722
(9th Cir. 1985).
The record contains the following evidence in support of Plaintiff’s
claims: (1) office treatment records from the San Bernardino County
Department of Behavioral Health assessing Plaintiff with major depressive
disorder and polysubstance dependence, see AR 272-84; (2) office treatment
records from a psychiatrist, diagnosing Plaintiff with bipolar disorder with
moderate symptoms, see AR 328-29, 343-46; and (3) Plaintiff’s testimony and
function report indicating problems with others, auditory hallucinations, and
anger issues, among other things, see AR 56, 63-65,225, 230. Altogether, this
evidence—although far from overwhelming—is sufficient to demonstrate that
Plaintiff has a “colorable claim of mental impairment.” Keyser, 648 F.3d at
726.2
The Court thus concludes that the ALJ erred in failing to adhere to the
procedure described in 20 C.F.R. § 416.920a and that the error was not
harmless. The Court will remand the case so that the ALJ can engage in the
Notably, the Commissioner does not contend that Plaintiff does not
have a colorable claim of mental impairment.
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analysis required by 20 C.F.R. § 416.920a for Plaintiff’s depressive disorder
and polysubstance dependence.
Remaining Claims
Plaintiff also argues that the ALJ erred in determining his RFC and in
failing to properly develop the record. See JS at 9-14. The Court declines to
address these claims at this time because the disability determination may
change significantly once the Step Two error is corrected. See Haverlock v.
Colvin, No. 12-2393, 2014 WL 670202, at *5 n.4 (E.D. Cal. Feb. 20, 2014)
(“In light of the remand required by the ALJ’s error at step two, the court need
not address plaintiff’s remaining claims.”).
CONCLUSION
The decision of the Social Security Commissioner is reversed and this
case is remanded.
IT IS SO ORDERED.

Date: October 7, 2019

___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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