Mr. Matthew P. McDevitt v. Ms. Carolyn W. Colver

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MATTHEW P. McDEVITT,

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Plaintiff,

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v.

Case No. SACV 13-1532 JC
MEMORANDUM OPINION AND
ORDER OF REMAND
[DOCKET NOS. 14, 15, 16]

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
erroneously sued as “Carolyn W.
Colver,”

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Defendant.

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19 I.
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SUMMARY
On September 30, 2013, plaintiff Matthew P. McDevitt (“plaintiff”) filed a

21 Complaint seeking review of the Commissioner of Social Security’s denial of
22 plaintiff’s application for benefits.
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This matter is before the Court on the parties’ cross motions for summary

24 judgment, respectively (“Plaintiff’s Motion”)1 and (“Defendant’s Motion”). The
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Plaintiff filed his original Motion for Summary Judgment on April 3, 2014, but filed a

28 first amended motion for summary judgment on April 4, 2014. (Docket Nos. 14, 15).
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1 Court has taken such motions under submission without oral argument. See Fed.
2 R. Civ. P. 78; L.R. 7-15; October 3, 2013 Case Management Order ¶ 5.
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Based on the record as a whole and the applicable law, the decision of the

4 Commissioner is REVERSED AND REMANDED for further proceedings
5 consistent with this Memorandum Opinion and Order of Remand.
6 II.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

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DECISION

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On August 11, 2009, plaintiff filed an application for Disability Insurance

9 Benefits. (Administrative Record (“AR”) 173). Plaintiff asserted that he became
10 disabled on January 9, 2009, due to diabetes, prostate cancer, arthritis, posterial
11 [sic] artery disease, post traumatic stress disorder (“PTSD”), depression,
12 neuropathy of the feet, stress/anxiety/panic attacks, hearing loss, fatigue, prostate
13 removal, urinary incontinence, cancer, and heart issues. (AR 204). The
14 Administrative Law Judge (“ALJ”) examined the medical record and heard
15 testimony from plaintiff (who was represented by counsel), plaintiff’s wife, and a
16 vocational expert on April 13, 2011. (AR 590-638). On May 20, 2011, the ALJ
17 determined that plaintiff was not disabled through the date of the decision. (AR
18 60-69).
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On January 10, 2012, the Appeals Council granted review, vacated the

20 ALJ’s May 20, 2011 decision, and remanded the matter for further administrative
21 proceedings. (AR 18, 75-77).
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On March 14, 2012, the ALJ again examined the medical record and also

23 heard testimony from plaintiff (who was again represented by counsel), and a
24 vocational expert. (AR 33-54).
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On May 18, 2012, the ALJ determined that plaintiff was not disabled

26 through the date last insured (i.e., June 30, 2011). (AR 18-27). Specifically, the
27 ALJ found that, through the date last insured: (1) plaintiff suffered from the
28 following medically determinable impairments: diabetes with neuropathy,
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1 degenerative disc disease in the lumbar and cervical spines, hearing loss, and
2 PTSD (AR 21); (2) plaintiff did not have a severe impairment or combination of
3 impairments (AR 21); and (3) plaintiff’s allegations regarding his limitations were
4 not completely credible (AR 26).
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The Appeals Council denied plaintiff’s application for review of the ALJ’s

6 May 18, 2012 decision. (AR 1).
7 III.

APPLICABLE LEGAL STANDARDS

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A.

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To qualify for disability benefits, a claimant must show that the claimant is

Sequential Evaluation Process

10 unable “to engage in any substantial gainful activity by reason of any medically
11 determinable physical or mental impairment which can be expected to result in
12 death or which has lasted or can be expected to last for a continuous period of not
13 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
14 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The
15 impairment must render the claimant incapable of performing the work the
16 claimant previously performed and incapable of performing any other substantial
17 gainful employment that exists in the national economy. Tackett v. Apfel, 180
18 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
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In assessing whether a claimant is disabled, an ALJ is to follow a five-step

20 sequential evaluation process:
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(1)

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Is the claimant presently engaged in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

(2)

Is the claimant’s alleged impairment sufficiently severe to limit

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the claimant’s ability to work? If not, the claimant is not

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disabled. If so, proceed to step three.

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(3)

Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.

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3

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Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If

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not, proceed to step four.

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(4)

Does the claimant possess the residual functional capacity to

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perform claimant’s past relevant work? If so, the claimant is

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not disabled. If not, proceed to step five.

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(5)

Does the claimant’s residual functional capacity, when

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considered with the claimant’s age, education, and work

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experience, allow the claimant to adjust to other work that

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exists in significant numbers in the national economy? If so,

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

11 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
12 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at
13 1110 (same).
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The claimant has the burden of proof at steps one through four, and the

15 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262
16 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch
17 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of
18 proving disability).
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B.

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Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

Standard of Review

21 benefits only if it is not supported by substantial evidence or if it is based on legal
22 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
23 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457
24 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable
25 mind might accept as adequate to support a conclusion.” Richardson v. Perales,
26 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a
27 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing
28 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
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To determine whether substantial evidence supports a finding, a court must

2 “‘consider the record as a whole, weighing both evidence that supports and
3 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v.
4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d
5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming
6 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that
7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
8 IV.

DISCUSSION

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Plaintiff contends, among other things, that a reversal or remand is

10 warranted because the ALJ failed properly to evaluate the opinions of plaintiff’s
11 treating physicians and, consequently, erred at step two in not finding any of
12 plaintiff’s impairments to be severe. (Plaintiff’s Motion at 21-25, 34-38). This
13 Court agrees.
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A.

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Pertinent Law
1.

Step Two

At step two of the sequential evaluation process, plaintiff has the burden to

17 present evidence of medical signs, symptoms and laboratory findings2 that
18 establish a medically determinable physical or mental impairment that is severe,
19 and that can be expected to result in death or which has lasted or can be expected
20 to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420
21 F.3d 1002, 1004-05 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3),
22 1382c(a)(3)(D)). Substantial evidence supports an ALJ’s determination that a
23 claimant is not disabled at step two where “there are no medical signs or
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A medical “sign” is “an anatomical, physiological, or psychological abnormality that can

26 be shown by medically acceptable clinical and laboratory diagnostic techniques[.]” Ukolov v.
27 Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96-4p).
A “symptom” is “an individual’s own perception or description of the impact of his or her

28 physical or mental impairment(s)[.]” Id. (quoting SSR 96-4p).
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1 laboratory findings to substantiate the existence of a medically determinable
2 physical or mental impairment.” Id. (quoting SSR 96-4p).
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Step two is “a de minimis screening device [used] to dispose of groundless

4 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Applying the
5 normal standard of review to the requirements of step two, a court must determine
6 whether an ALJ had substantial evidence to find that the medical evidence clearly
7 established that the claimant did not have a medically severe impairment or
8 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)
9 (citation omitted); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)
10 (“Despite the deference usually accorded to the Secretary’s application of
11 regulations, numerous appellate courts have imposed a narrow construction upon
12 the severity regulation applied here.”). An impairment or combination of
13 impairments can be found “not severe” only if the evidence establishes a slight
14 abnormality that has “no more than a minimal effect on an individual’s ability to
15 work.” Webb, 433 F.3d at 686 (citation omitted).
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2.

Medical Opinion Evidence

In Social Security cases, courts employ a hierarchy of deference to medical

18 opinions depending on the nature of the services provided. Courts distinguish
19 among the opinions of three types of physicians: those who treat the claimant
20 (“treating physicians”) and two categories of “nontreating physicians,” namely
21 those who examine but do not treat the claimant (“examining physicians”) and
22 those who neither examine nor treat the claimant (“nonexamining physicians”).
23 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A
24 treating physician’s opinion is entitled to more weight than an examining
25 physician’s opinion, and an examining physician’s opinion is entitled to more
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1 weight than a nonexamining physician’s opinion.3 See id. In general, the opinion
2 of a treating physician is entitled to greater weight than that of a non-treating
3 physician because the treating physician “is employed to cure and has a greater
4 opportunity to know and observe the patient as an individual.” Morgan v.
5 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir.
6 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
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The treating physician’s opinion is not, however, necessarily conclusive as

8 to either a physical condition or the ultimate issue of disability. Magallanes v.
9 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d
10 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not
11 contradicted by another doctor, it may be rejected only for clear and convincing
12 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal
13 quotations omitted). The ALJ can reject the opinion of a treating physician in
14 favor of another conflicting medical opinion, if the ALJ makes findings setting
15 forth specific, legitimate reasons for doing so that are based on substantial
16 evidence in the record. Id. (citation and internal quotations omitted); Thomas v.
17 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out
18 detailed and thorough summary of facts and conflicting clinical evidence, stating
19 his interpretation thereof, and making findings) (citations and quotations omitted);
20 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite “magic words” to
21 reject a treating physician opinion – court may draw specific and legitimate
22 inferences from ALJ’s opinion). “The ALJ must do more than offer his
23 conclusions.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). “He must
24 set forth his own interpretations and explain why they, rather than the
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Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to
draw bright line distinguishing treating physicians from non-treating physicians; relationship is
better viewed as series of points on a continuum reflecting the duration of the treatment
relationship and frequency and nature of the contact) (citation omitted).
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1 [physician’s], are correct.” Id. “Broad and vague” reasons for rejecting the
2 treating physician’s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599,
3 602 (9th Cir. 1989).
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B.

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Plaintiff contends that the ALJ failed properly to consider the opinions of

Analysis

6 Dr. Allen Chiu, one of plaintiff’s treating physicians. The Court agrees. As the
7 ALJ’s error was not harmless, a remand is warranted.
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In an April 28, 2011 Treating Physician’s Statement, Dr. Chiu, among other

9 things, diagnosed plaintiff with multiple physical impairments including chronic
10 degenerative joint disease, and opined that plaintiff’s limitations essentially would
11 prevent plaintiff from engaging in work at even a sedentary level (“Dr. Chiu’s
12 Opinions”).4 (AR 472-79). The ALJ essentially provided three reasons for
13 rejecting Dr. Chiu’s Opinions, none of which the Court finds sufficient.
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First, the ALJ noted ambiguities in Dr. Chiu’s report – i.e., the treating

15 physician opined that (a) plaintiff could carry 20 pounds “frequently” but could
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Specifically, Dr. Chiu (with input from Dr. Rena Kaiser) (i) diagnosed plaintiff with

18 chronic degenerative joint disease with limited prognosis for return to hand function, left lower
extremity ankle edema, and varicose veins; (ii) noted that plaintiff had limitation in range of

19 motion in his upper and lower extremities and back; (iii) noted neurological abnormalities (i.e.,
20 decreased sensation in feet and hands, limitations in reflexes and motor strength), tenderness to
palpation in the right lumbar spine, and atrophy in the bilateral quadriceps; and opined that

21 plaintiff (iv) could stand/walk less than two hours in an eight-hour workday with normal breaks,
22 and less than one hour at a time; (v) could sit less than two hours in an eight-hour workday with
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normal breaks; (vi) could occasionally walk without an assistive device (but also occasionally
needed an assistive device to ambulate); (vii) was able to avoid ordinary hazards in the
workplace (i.e., boxes on the floor, moving machineries moving part(s) of machineries, and/or
approaching people); (viii) could carry up to 20 pounds frequently, and could lift up to 20 pounds
occasionally; (ix) could occasionally finger, feel, handle, and reach; (x) could never climb kneel,
crouch, or squat, but could occasionally balance, stoop, or crawl; (xi) could never be exposed to
hazzards, dusts and moving machinery, but could occasionally be exposed to temperature
extremes and heights; (xii) was unable to lift heavy/medium objects with his right upper
extremity; (xiii) could not sit for prolonged periods of time; and (xiv) had difficulty walking
moderate distances due to bilateral lower extremity neuropathy. (AR 472-79).
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1 lift 20 pounds only “occasionally”; and (b) plaintiff was able to avoid ordinary
2 hazards in the workplace, including moving machinery, but could never be
3 exposed to hazards or moving machinery. (AR 23) (citing Exhibit 17F at 4, 78
4 [AR 474, 477-78]). Such ambiguities do not constitute a specific and legitimate
5 reason for rejecting Dr. Chiu’s Opinions. Cf. Tonapetyan v. Halter, 242 F.3d
6 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence, or the ALJ’s own finding that
7 the record is inadequate to allow for proper evaluation of the evidence, triggers the
8 ALJ’s duty to conduct an appropriate inquiry.”) (citations and quotation marks
9 omitted). To the extent the ALJ found Dr. Chiu’s Opinions ambiguous or
10 otherwise inadequate, the ALJ should have contacted Dr. Chiu to resolve any
11 perceived conflict, or called a medical expert to assist in determining the extent to
12 which the medical records reflected any limitation on plaintiff’s physical ability to
13 work. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation
14 omitted) (Although plaintiff bears the burden of proving disability, the ALJ has an
15 affirmative duty to assist the claimant in developing the record “when there is
16 ambiguous evidence or when the record is inadequate to allow for proper
17 evaluation of the evidence.”).5
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Second, the ALJ wrote that Dr. Chiu’s “extremely restrictive assessment”

19 suggested that plaintiff needed to lie down “for most of the day,” but that such
20 significant limitations were “not supported by the [plaintiff’s] subjective
21 complaints and [] not consistent with [plaintiff’s] daily activities.” (AR 23). The
22 ALJ’s foregoing broad and vague reasons for rejecting Dr. Chiu’s Opinions are
23 insufficient. McAllister, 888 F.2d at 602. More specifically, the ALJ failed to
24 explain precisely how Dr. Chiu’s Opinions were inconsistent with plaintiff’s
25 subjective complaints and daily activities. In fact, the record reflects otherwise.
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Where it is necessary to enable the ALJ to resolve an issue of disability, the duty to
develop the record may require consulting a medical expert or ordering a consultative
examination. See 20 C.F.R. § 404.1519a.
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1 For example, the ALJ wrote that plaintiff testified, in pertinent part, that he could
2 only sit for 20-30 minutes at a time, stand for half an hour to 45 minutes at a time,
3 and walk for ten to fifteen minutes at a time. (AR 22). However, such subjective
4 complaints are not inconsistent with Dr. Chiu’s Opinions that plaintiff could sit
5 less than two hours in an eight-hour workday with normal breaks, could
6 stand/walk less than two hours in an eight-hour workday and less than one hour at
7 a time, and had difficulty walking moderate distances. (AR 473-74, 478).
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Moreover, in the decision, the ALJ noted that plaintiff had “no problems

9 with personal care” and engaged in “a wide variety of activities.” (AR 25-26
10 (citing Exhibits 2E at 10 [AR 212]; 4E at 1-5 [AR 221-25]; 6E at 4 [AR 235]; 8E
11 at 1-5 [AR 246-50]; 9E at 4-8 [AR 257-61]; 12F at 2, 6, 7, 11 [AR 432, 436-37,
12 441]; 13F at 1 [AR 451]; 17F at 8 [AR 478]; 20F at 24, 75, 88 [AR 512, 563,
13 576]); AR 610, 617-19). While an ALJ may, in certain circumstances, discredit a
14 medical opinion that is inconsistent with plaintiff’s daily activities, see Morgan,
15 169 F.3d at 601-02, the record does not support such a finding here. The cited
16 exhibits reflect that plaintiff’s ability to engage in such activities was much more
17 limited than the ALJ’s decision suggests. For example, while plaintiff indicated in
18 his Function Report that he had “no problems with personal care,” he also noted
19 that he needed “special reminders” to take his medication, and reminders to
20 shower and shave in order to “look OK.” (AR 223, 258-59). As for household
21 chores, although, as the ALJ noted, plaintiff would clean the house, he did so only
22 “2-3 times a week” for “[a] few minutes” at a time. (AR 259). Plaintiff also could
23 do “some laundry,” but did so “slowly.” (AR 248). When plaintiff did “small
24 repairs,” he “usually need[ed] someone to hand him tools and hold a flashlight.”
25 (AR 248). Similarly, while plaintiff gardened, he testified that he did so for only
26 about 20 minutes each day. (AR 619). Plaintiff also stated that he needed “a lot”
27 of help and encouragement to do any chores at all. (AR 223, 259). Although, as
28 the ALJ also noted, plaintiff would go shopping in stores, he was accompanied by
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1 his wife, went only two to three times a week for one hour at a time, and
2 purchased basic items (i.e., for food and household goods). (AR 249, 260).
3 Plaintiff would drive his grandchildren to/from school, but the drive took only ten
4 minutes and plaintiff drove only “if [his] wife [was not] available.” (AR 618).
5 When plaintiff watched his grandchildren play baseball or soccer, again he only
6 drove for about ten minutes at a time. (AR 618). In addition, plaintiff could read
7 the newspaper 2-3 times a day, but would get “frustrated” when he tried to read.
8 (AR 224, 257, 261). Plaintiff would attend church only once a week, play golf
9 only every other week, and go to “movies” and “some sporting events” only “once
10 a month.” (AR 225, 250, 261, 441). Plaintiff’s treatment required him to go to the
11 VA clinic only two or three times a week. (AR 221, 257, 261).
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Even assuming plaintiff retained the ability to carry on certain minimal

13 activities of daily living, the record does not reasonably reflect that such activities
14 were inconsistent with Dr. Chiu’s Opinions, which permitted plaintiff to
15 sit/stand/walk for a total of four hours each day, lift/carry up to 20 pounds, and
16 only occasionally finger, feel, handle and reach. (AR 472-79). Similarly,
17 although notes taken during plaintiff’s therapy sessions reflect that in 2010 he
18 took a trip to Disneyland with his grandchildren (AR 432) and went on a
19 cruise/trip to Europe (AR 432, 436-37, 441), and in 2011 traveled with his wife for
20 several weeks (AR 563-64, 576), such infrequent activities were not materially
21 inconsistent with Dr. Chiu’s Opinions of disabling symptoms. Cf. Vertigan v.
22 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“One does not need to be ‘utterly
23 incapacitated’ in order to be disabled.”) (citing Fair v. Bowen, 885 F.2d 597, 603
24 (9th Cir. 1989)).
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Third, the ALJ observed later in the opinion that while Dr. Chiu found

26 decreased sensation in plaintiff’s hands and feet, and 4/5 strength in all muscle
27 groups of plaintiff’s upper and lower extremities, plaintiff “d[id] not report
28 weakness in any of his extremities.” (AR 24) (citing Exhibit 17F at 6 [AR 476]).
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1 The ALJ’s decision points to no medical evidence, however, which suggests that
2 Dr. Chiu’s findings were the result of anything other than objective neurological
3 testing.6 The Court cannot conclude that the absence of specific complaints by
4 plaintiff about muscle weakness is necessarily inconsistent with such objective
5 medical testing which reflected that plaintiff had a decrease in sensation and
6 strength. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (ALJ’s
7 “own speculation” does not constitute substantial evidence supporting ALJ’s
8 conclusion).
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Fourth, even assuming the ALJ provided specific and legitimate reasons for

10 rejecting Dr. Chiu’s Opinions, the record lacks substantial evidence to support the
11 ALJ’s findings. Here, the ALJ effectively rejected all other medical source
12 opinions regarding plaintiff’s physical limitations. (AR 23-24) Therefore, it
13 appears that the ALJ’s rejection of Dr. Chiu’s Opinions and conclusion that none
14 of plaintiff’s medically determinable impairments was severe, were based solely
15 on the ALJ’s own lay interpretation of plaintiff’s treatment records. However,
16 “[t]he ALJ is not allowed to use his own medical judgment in lieu of that of a
17 medical expert.” Winters v. Barnhart, 2003 WL 22384784, *6 (N.D. Cal. Oct. 15,
18 2003); see also Gonzalez Perez v. Secretary of Health & Human Services, 812
19 F.2d 747, 749 (1st Cir. 1987) (ALJ may not “substitute his own layman’s opinion
20 for the findings and opinion of a physician”); Ferguson v. Schweiker, 765 F.2d 31,
21 37 (3d Cir. 1985) (ALJ may not substitute his interpretation of laboratory reports
22 for that of a physician).
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Moreover, the Administrative Record is missing the second page of Dr. Chiu’s Treating

26 Physician’s Statement. Accordingly, the Court cannot confidently conclude, and defendant does
27 not suggest, that the full statement failed to document plaintiff’s subjective complaints and/or the
objective testing which supported what appear to be clinical findings regarding plaintiff’s

28 neurological abnormalities. (AR 472-73).
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1

Finally, Dr. Chiu’s Opinions, if credited, support an inference that plaintiff’s

2 physical impairments had “more than a minimal effect” on plaintiff’s ability to
3 work (i.e., were “severe”). Webb, 433 F.3d at 686 (citation omitted). Therefore,
4 the ALJ’s step two determination that plaintiff had no impairment or combination
5 of impairments that was severe, and that plaintiff was not disabled, was erroneous.
6

The ALJ’s errors cannot be deemed harmless since the ALJ found plaintiff

7 not disabled at step two, and did not evaluate plaintiff’s impairments at any of the
8 later steps of the sequential evaluation process. Cf. Lewis v. Astrue, 498 F.3d
9 909, 911 (9th Cir. 2007) (failure to address particular impairment at step two is
10 harmless if ALJ fully evaluates claimant’s medical condition in later steps of
11 sequential evaluation process).
12

Accordingly, a remand is appropriate to permit the ALJ properly to consider

13 the medical evidence and evaluate plaintiff’s disability at all appropriate steps of
14 the sequential evaluation process.
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1 V.

CONCLUSION7

2

For the foregoing reasons, the decision of the Commissioner of Social

3 Security is reversed in part, and this matter is remanded for further administrative
4 action consistent with this Opinion.8
5

LET JUDGMENT BE ENTERED ACCORDINGLY.

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7 DATED: May 30, 2014
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______________/s/___________________

9

Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s

23 decision, except insofar as to determine that a reversal and remand for immediate payment of
24 benefits would not be appropriate.
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8

When a court reverses an administrative determination, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
quotations omitted). Remand is proper where, as here, additional administrative proceedings
could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.
1989).
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