Wolff v. Colvin

Filing 20

ORDER signed by Magistrate Judge Deborah Barnes on 3/13/17 ORDERING that Plaintiff's MOTION for Summary Judgment 16 is GRANTED; Defendant's Cross-MOTION for Summary Judgment 17 is DENIED; The Commissioner's decision is REVERSED; and This matter is REMANDED for further proceedings consistent with this order. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JULIE L. WOLFF,

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Plaintiff,

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No. 2:15-cv-1899 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This social security action was submitted to the court without oral argument for ruling on

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plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.1

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Plaintiff argues that the ALJ erred at step two of the sequential evaluation and by rejecting

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plaintiff’s testimony. For the reasons explained below, plaintiff’s motion is granted, defendant’s

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motion is denied, the decision of the Commissioner of Social Security (“Commissioner”) is

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reversed, and the matter is remanded for further proceedings consistent with this order.

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PROCEDURAL BACKGROUND

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In February of 2012, plaintiff filed an application for Disability Insurance Benefits

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(“DIB”) under Title II of the Social Security Act (“the Act”), alleging disability beginning on
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Both parties have previously consented to Magistrate Judge jurisdiction over this action
pursuant to 28 U.S.C. § 636(c). (See ECF Nos. 7 & 12.)
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November 1, 2006. (Transcript (“Tr.”) at 28, 154-55.) Plaintiff’s application was denied

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initially, (id. at 92-95), and upon reconsideration. (Id. at 100-04.) Plaintiff requested an

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administrative hearing and a hearing was held before an Administrative Law Judge (“ALJ”) on

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August 21, 2013. (Id. at 39-71.) Plaintiff was represented by an attorney and testified at the

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administrative hearing. (Id. at 39-40.)

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In a decision issued on November 19, 2013, the ALJ found that plaintiff was not disabled.
(Id. at 35.) The ALJ entered the following findings:

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1. The claimant last met the insured status requirements of the
Social Security Act on December 31, 2009.

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2. The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of November 1, 2006
through her date last insured of December 31, 2009 (20 CFR
404.1571 et seq.).

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3. Through the date last insured, the claimant had the following
severe impairments: degenerative disc disease (20 CFR
404.1520(c)).

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4. Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and
404.1526).

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5. After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the
residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except she can sit for 8 hours in an 8-hour work
day (with normal breaks); stand/walk for 8 hours in an 8-hour
workday (with normal breaks). She can frequently stoop, crouch,
crawl and kneel and perform frequent gross and fine manipulation.

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6. Through the date last insured, the claimant was capable of
performing past relevant work as an attorney. This work did not
require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).

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7. The claimant was not under a disability, as defined in the Social
Security Act, at any time from November 1, 2006, the alleged onset
date, through December 31, 2009, the date last insured (20 CFR
404.1520(f)).

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(Id. at 30-35.)
On June 16, 2015, the Appeals Council denied plaintiff’s request for review of the ALJ’s
November 19, 2013 decision. (Id. at 13-15.) Plaintiff sought judicial review pursuant to 42
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U.S.C. § 405(g) by filing the complaint in this action on September 8, 2015. (ECF No. 1.)

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LEGAL STANDARD
“The district court reviews the Commissioner’s final decision for substantial evidence,

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and the Commissioner’s decision will be disturbed only if it is not supported by substantial

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evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

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Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).

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“[A] reviewing court must consider the entire record as a whole and may not affirm

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simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

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1989)). If, however, “the record considered as a whole can reasonably support either affirming or

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reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

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1072, 1075 (9th Cir. 2002).

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A five-step evaluation process is used to determine whether a claimant is disabled. 20

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C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

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process has been summarized as follows:

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Step one: Is the claimant engaging in substantial gainful activity?
If so, the claimant is found not disabled. If not, proceed to step
two.
Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity
to perform any other work? If so, the claimant is not disabled. If
not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
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The claimant bears the burden of proof in the first four steps of the sequential evaluation

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process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

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if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

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1098 (9th Cir. 1999).

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APPLICATION
Plaintiff’s pending motion argues that the ALJ committed the following two principal

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errors: (1) the ALJ erred at step two of the sequential evaluation; and (2) the ALJ’s treatment of

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plaintiff’s testimony constituted error. (Pl.’s MSJ (ECF No. 16) at 8-12.2)

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I.

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Step Two Error
At step two of the sequential evaluation, the ALJ must determine if the claimant has a

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medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273,

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1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations

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provide that “[a]n impairment or combination of impairments is not severe if it does not

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significantly limit [the claimant’s] physical or mental ability to do basic work activities.” 20

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C.F.R. §§ 404.1521(a) & 416.921(a). Basic work activities are “the abilities and aptitudes

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necessary to do most jobs,” and those abilities and aptitudes include: (1) physical functions such

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as walking, standing, sitting, lifting, and carrying; (2) capacities for seeing, hearing, and speaking;

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(3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5)

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responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing

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with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).
The Supreme Court has recognized that the Commissioner’s “severity regulation increases

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the efficiency and reliability of the evaluation process by identifying at an early stage those

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claimants whose medical impairments are so slight that it is unlikely they would be found to be

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disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S.

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at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158

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(O’Connor, J., concurring). “An impairment or combination of impairments can be found not

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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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severe only if the evidence establishes a slight abnormality that has no more than a minimal effect

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on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and

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citation omitted).

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“[A]n ALJ may find that a claimant lacks a medically severe impairment or combination

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of impairments only when his conclusion is ‘clearly established by medical evidence.’” Webb v.

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Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 85-28); see

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also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to satisfy step two

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burden where “none of the medical opinions included a finding of impairment, a diagnosis, or

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objective test results”). “Step two, then, is ‘a de minimis screening device [used] to dispose of

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groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); see also

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Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing this “de minimis

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standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13 (N.D. Cal.

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Feb.11, 2008) (describing claimant’s burden at step two as “low”).

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Here, plaintiff argues that the ALJ erred at step two of the sequential evaluation by finding

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that plaintiff’s chronic fatigue syndrome, bilateral carpal tunnel syndrome, peripheral neuropathy,

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and cervical stenosis were not severe impairments. (Pl.’s MSJ (ECF No. 16) at 8.) The ALJ’s

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decision failed to discuss any of these impairments at step two. In this regard, the entirety of the

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ALJ’s step two discussion is merely a single sentence finding that plaintiff’s “degenerative disc

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disease,” constituted a sever impairment through the date last insured. (Id. at 30.) The ALJ’s

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decision provides nothing more at step two.

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Moreover, as noted in plaintiff’s motion, there is evidence to supports plaintiff’s assertion

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that these impairments were medically determinable and severe. (See Tr. at 212, 217, 231, 233,

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237, 239, 242-44, 253-54, 257-58, 276-77, 295-96, 300, 302, 329, 333.) Although the ALJ’s

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decision noted at step four that plaintiff’s alleged impairments included chronic fatigue syndrome,

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bilateral carpal tunnel syndrome, peripheral neuropathy, and cervical stenosis, the ALJ failed to

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evaluate these impairments in any meaningful way. (Id. at 31-34.)

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In this regard, the ALJ committed harmful error at step two of the sequential evaluation.

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See Philips v. Colvin, No. 1:12-cv-1772 JLT, 2014 WL 791478, at *7 (E.D. Cal. Feb. 24, 2014)
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(“the ALJ erred by failing to identify and evaluate the conditions and its symptoms in

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combination at Step Two, or consider any limitations at Step Four”); see also Ortiz v.

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Commissioner of Social Sec., 425 Fed. Appx. 653, 655 (9th Cir. 2011) (“This is not the total

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absence of objective evidence of severe medical impairment that would permit us to affirm a

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finding of no disability at step two.”); Webb, 433 F.3d at 687 (“Although the medical record

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paints an incomplete picture of Webb’s overall health during the relevant period, it includes

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evidence of problems sufficient to pass the de minimis threshold of step two.”); Burch v.

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Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“In determining whether a claimant’s obesity is a

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severe impairment, an ALJ must do an individualized assessment of the impact of obesity on an

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individual’s functioning.”); Russell v. Colvin, 9 F.Supp.3d 1168, 1186-87 (D. Or. 2014) (“On

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review, the court must determine whether the ALJ had substantial evidence to find that the

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medical evidence clearly established that Ms. Russell did not have a medically severe impairment

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or combination of impairments.”); cf. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (any

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step two error was harmless where “ALJ extensively discussed” condition “at Step 4 of the

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analysis”); Ukolov, 420 F.3d at 1006 (“Because none of the medical opinions included a finding

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of impairment, a diagnosis, or objective test results, Ukolov failed to meet his burden of

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establishing disability.”).

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Accordingly, the court finds that plaintiff is entitled to summary judgment on the claim

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that the ALJ erred at step two of the sequential evaluation.

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II.

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Plaintiff’s Testimony
Plaintiff also argues that the ALJ’s treatment of plaintiff’s testimony constituted error.

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(Pl.’s MSJ (ECF No. 16) at 11-12.) The Ninth Circuit has summarized the ALJ’s task with

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respect to assessing a claimant’s credibility as follows:

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To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
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ALJ may not reject subjective symptom testimony . . . simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.

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Second, if the claimant meets this first test, and there is no evidence
of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so . . . .

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

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omitted). “The clear and convincing standard is the most demanding required in Social Security

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cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

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the same time, the ALJ is not required to believe every allegation of disabling pain, or else

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disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d 1104, 1112

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(9th Cir. 2012).
“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant’s complaints.” Valentine v. Commissioner Social Sec. Admin., 574

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F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other

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things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s]

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testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work

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record, and testimony from physicians and third parties concerning the nature, severity, and effect

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of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59

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(9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792

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(9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the

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record, the court “may not engage in second-guessing.” Id.
Here, the ALJ found that plaintiff’s medically determinable impairments could reasonably

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be expected to cause the symptoms alleged, but that plaintiff’s statements concerning the

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intensity, persistence and limiting effects of those symptoms were “not entirely credible for the

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reasons explained in this decision.” (Tr. at 32.) The ALJ’s decision then provided a nonspecific

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discussion of medical records, (id. at 32-34), before concluding:

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Based on the above evidence it is found that the claimant’s subject
(sic) complaints and allegations regarding her functional limitations
are not fully credible for the time period of her alleged onset date of
November 1, 2006 through her date last insured of December 31,
2009. There are minimal treatment records to support the severity
of her condition during this period.

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(Tr. at 34.)

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However, “after a claimant produces objective medical evidence of an underlying

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impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a lack of

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medical evidence to fully corroborate the alleged severity of” the symptoms. Burch, 400 F.3d at

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680; see also Putz v. Astrue, 371 Fed. Appx. 801, 802-03 (9th Cir. 2010) (“Putz need not present

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objective medical evidence to demonstrate the severity of her fatigue.”).

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Accordingly, the ALJ failed to offer specific, clear, and convincing reasons for rejecting

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plaintiff’s testimony. Plaintiff, therefore, is also entitled to summary judgment on the claim that

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the ALJ’s treatment of plaintiff’s subjective testimony constituted error.

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CONCLUSION

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With error established, the court has the discretion to remand or reverse and award

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benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

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under the “credit-as-true” rule for an award of benefits where:

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(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.

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Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the

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“credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when

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the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within

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the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d

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403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative

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proceedings would serve no useful purpose, it may not remand with a direction to provide

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benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.
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2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the

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proper approach is to remand the case to the agency.”).

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Here, given the ALJ’s error at step two of the sequential evaluation the court cannot say

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that “further administrative proceedings would serve no useful purpose.” Dominguez, 808 F.3d

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at 407; see also Treichler, 775 F.3d at 1103-04 (“In evaluating this issue, we consider whether the

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record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been

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resolved, and whether the claimant’s entitlement to benefits is clear under the applicable legal

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rules.”). Accordingly, this matter will be remanded for further proceedings.

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 16) is granted;

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2. Defendant’s cross-motion for summary judgment (ECF No. 17) is denied;

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3. The Commissioner’s decision is reversed; and

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4. This matter is remanded for further proceedings consistent with this order.

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Dated: March 13, 2017

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DLB:6
DB\orders\orders.soc sec\wolff1899.ord

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