Beals v. Commissioner of Social Security

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/13/17, GRANTING Plaintiffs 17 motion for summary judgment. Defendant's 20 cross-motion for summary judgment is DENIED. The Commissioner's decision is REVERSED. This matter is REMANDED for further proceedings consistent with this order. The Clerk shall enter judgment for plaintiff. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY L. BEALS,

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Plaintiff,

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No. 2:16-cv-0008 CKD

v.

ORDER

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

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title

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XVI of the Social Security Act (“Act”). For the reasons discussed below, the court will grant

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plaintiff’s motion for summary judgment and deny the Commissioner’s cross-motion for

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summary judgment.

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BACKGROUND
Plaintiff, born October 29, 1963, applied on May 15, 2012 for SSI, alleging disability

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beginning July 1, 2004. Administrative Transcript (“AT”) 84. Plaintiff alleged he was unable to

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work due to seizure disorder, anxiety, migraines, back injury, and several other conditions. AT

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84. In a decision dated June 18, 2014, the ALJ determined that plaintiff was not disabled.1 AT

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17-28. The ALJ made the following findings (citations to 20 C.F.R. omitted):

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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 his alleged onset date of July 1, 2004
through his date last insured of December 31, 2009.

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3. Through the date last insured, the claimant had the following
severe impairments: seizures and migraines.

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4. Through the date last insured, the claimant did not have an
impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404, Subpart P,

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to
disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in
part, as an “inability to engage in any substantial gainful activity” due to “a medically
determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).
A parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
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.

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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
process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the
burden if the sequential evaluation process proceeds to step five. Id.
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Appendix 1.

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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 the full range of sedentary
work. Due to his seizure activity, he could never climb ladders,
ropes or scaffolds. He had to avoid working near hazards
(machinery, heights, etc.).

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6. Through the date last insured, the claimant was unable to
perform any past relevant work.

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7. The claimant was born on October 29, 1963 and was 46 years
old, which is defined as a younger individual age 18-49, on the date
last insured.

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8. The claimant has at least a high-school education and is able to
communicate in English.

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9. Transferability of job skills is not material to the determination
of disability because applying the Medi-Vocational Rules directly
supports a finding of “not disabled,” whether or not the claimant
has transferable job skills.

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10. Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that exist in significant numbers in the national economy
that the claimant could have performed.

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11. The claimant was not under a disability, as defined in the
Social Security Act, at any time from July 1, 2004, the alleged onset
date, through December 31, 2009, the date last insured.

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AT 19-27.

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ISSUES PRESENTED

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Plaintiff argues that the ALJ committed the following errors in finding plaintiff not

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disabled: (1) the ALJ erroneously ignored opinions from a treating psychologist regarding

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limitations caused by plaintiff’s mental health impairments; (2) the ALJ erred by finding multiple

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impairments non-severe at step two and failing to include their associated limitations in the RFC;

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(3) the ALJ erred by failing to procure testimony from a vocational expert at step five; (4) the

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ALJ erred by failing to address the side effects from plaintiff’s medications.

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LEGAL STANDARDS

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The court reviews the Commissioner’s decision to determine whether (1) it is based on
proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record
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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted).

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“The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one

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rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th

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Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s

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conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not

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affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see

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also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the

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administrative findings, or if there is conflicting evidence supporting a finding of either disability

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or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226,

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1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in

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weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

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ANALYSIS

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A. Dr. Burns’s Opinion

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Plaintiff asserts that the ALJ erred by ignoring the medical opinion of Dr. Bruce Burns, a

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psychiatrist at Kaiser Permanente who first saw plaintiff on May 27, 2010 and last saw him on

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April 9, 2012. AT 1556, 1559. In a February 18, 2014 functional capacity report concerning

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plaintiff’s mental health, Dr. Burns noted that plaintiff was “first seen on 6/21/05.” AT 1556 In

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the 2014 report, Dr. Burns diagnosed plaintiff with dysthmia and anxiety disorder and rated his

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ability to relate to coworkers, deal with the public, interact with supervisors, and deal with work

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stress as “poor.” AT 1556-1557. The report further indicated that plaintiff was being treated with

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Zoloft for depression and had shown “minimal response,” and that his treatment was
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“complicated by his father’s illness and death.” AT 1556. Dr. Burns described his prognosis was

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“guarded.” AT 1556.
The ALJ did not address Dr. Burns’s report. At step four, the decision stated: “As for the

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opinion evidence, none of the claimant’s treating physicians have provided a medical source

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statement indicating his inability to function prior to the last date insured” – i.e., December 31,

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2009. AT 26. Defendant argues that, because Dr. Burns did not begin seeing plaintiff until five

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months after the relevant time period ended, his report did not bear on plaintiff’s functional

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ability during that period and thus did not need be specifically addressed. See Howard v.

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Barhnart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and developing the

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record, the ALJ does not need to discuss every piece of evidence.”).

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Plaintiff acknowledges that, while the medical evidence includes referrals for

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psychological treatment, there are no psychological treatment reports in the record. As the ALJ

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stated: “The record does not document any longitudinal mental health treatment prior to

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December 31, 2009.”2 AT 22. As the ALJ reasonably discounted psychological opinions outside

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the relevant time frame, the court finds no error.

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B. Non-Severe Impairments

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Plaintiff contends that, in the determination that plaintiff suffered from two severe

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impairments (seizures and migraines), the ALJ improperly found two other impairments (anxiety

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and dysthymia disorder) non-severe. Plaintiff further contends that the ALJ failed to include any

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limitations associated with plaintiff’s non-severe conditions in the RFC determination.

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1. Mental impairments

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At step two, the ALJ found that plaintiff’s “alleged depression, anxiety, and intellectual

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delay were not severe mental impairments.” AT 22. The ALJ continued:

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The record does not document any longitudinal mental health
treatment prior to December 31, 2009. The record shows that on
October 18, 2006, he was depressed due to his father’s death.

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At the hearing, the ALJ asked plaintiff’s counsel about additional records and held the record
open after the hearing to receive any such records, thus meeting the duty to develop the record.
AT 36, 75-77.
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There is no medical evidence of mental health treatment prior to
December 31, 2009. . . . Based upon observations of current
behavior and reported psychiatric history, the claimant’s ability to
interact with the public, supervisors, and coworkers . . . appears to
be mild impairment due to anxiety.

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AT 22.
The ALJ cited a November 2010 consultative examination by psychologist Dr. Troy

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Ewing, who found plaintiff to have “average memory functioning [and] primarily average

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intellectual functioning with borderline intellectual functioning in verbal comprehension solely.”

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AT 929. Dr. Ewing further found plaintiff to have “no difficulty” understanding, remembering

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and carrying out simple and complex instructions; maintaining attention and concentration; with

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pace and persistence; and enduring the stress of the interview. AT 929. He found that plaintiff

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“is likely to have mild difficulty adapting to changes in routine work-related settings and will do

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better with non-verbal directions.” AT 929. Dr. Ewing continued that, “[b]ased upon

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observations of current behavior and reported psychiatric history, the claimant’s ability to interact

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with the public, supervisors, and coworkers there appears to be mild impairment due to anxiety.”

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AT 929.

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An impairment is Anot severe@ only if it Awould have no more than a minimal effect on an

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individual=s ability to work, even if the individual=s age, education, or work experience were

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specifically considered.@ SSR 85-28. The purpose of step two is to identify claimants whose

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medical impairment is so slight that it is unlikely they would be disabled even if age, education,

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and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 107 S. Ct. 2287

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(1987). AThe step-two inquiry is a de minimis screening device to dispose of groundless claims.@

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Smolen v. Chater 80 F.3d 1273, 1290 (9th Cir. 1996); see also Edlund v. Massanari, 253 F.3d

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1152, 1158 (9th Cir. 2001). Impairments must be considered in combination in assessing

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severity. 20 C.F.R. ' 404.1523. Here, lacking psychological records for the relevant time

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period, plaintiff has not met his burden to show his anxiety and dysthymia disorder were severe.

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In determining RFC, the ALJ was not required to restate that the record contained no

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mental health records for the relevant period. As to cognitive impairments, the ALJ noted in the

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RFC analysis that plaintiff’s mental impairment was initially determined to be non-severe by Dr.
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Mateus; however, upon reconsideration, Dr. Brode determined that plaintiff “had severe mental

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impairment and could perform simple work with social considerations.” AT 26; see AT 100-101.

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The ALJ also considered the opinion of Dr. Ewing, discussed earlier, and concluded that there

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was “no basis to erode the claimant’s RFC for any mental impairment.” AT 26. The court finds

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no error at step two or four concerning plaintiff’s mental health.

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2. Hand and spine issues

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As to plaintiff’s musculoskeletal complaints, the ALJ summarized the medical evidence

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bearing on the step two decision that these were not severe impairments. (AT 19-22.) The ALJ

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concluded: “While the diagnostic studies and exams showed musculoskeletal changes, none of his

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alleged musculoskeletal impairments significantly affected his ability to perform basic work

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activity during the period under consideration.” AT 22.

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“[E]ven assuming the ALJ’s step two finding is somehow sound,” plaintiff argues, “the

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ALJ erred by failing to discuss or consider limitations posed by all Plaintiff’s impairments for

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purposes of establishing Plaintiff’s RFC and making a finding at step five.” ECF No. 17 at 10;

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see AT 24-27. Specifically, plaintiff contends, the ALJ never directly addressed plaintiff’s

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chronic ulnar neuropathy and chronic compression fracture of the spine, but improperly relied on

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a generalized “review technique” in making the RFC assessment. Id.

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When an ALJ considers limitations resulting from an impairment in the RFC, any error in

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not considering the impairment to be severe is harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th

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Cir. 2007); but see Betts-Cossens for Betts v. Berryhill, 2017 WL 2598889, *7 (D. Hawai’i June

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15, 2017) (step two error as to severity of psoriasis was not harmless where “[n]owhere in the

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ALJ’s opinion does she specifically consider the limitations posed by the psoriasis or discuss it in

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any detail”).

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In the RFC discussion, the ALJ noted plaintiff’s May 2008 complaint of numbness and

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pain in his left hand, wrist, and forearm. AT 26, 328. The ALJ also cited Dr. Mitgang’s 2013

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opinion that plaintiff was capable of performing a full range of light exertional work. AT 26,

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103-104. However, the RFC analysis does not address the limitations suggested by, e.g., 2007

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records noting wrist pain, numbness, tingling, and the use of a hand brace (AT 293), plaintiff’s
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reports of wrist and elbow pain (AT 305), “some ulnar nerve neuritis” (AT 307, 310),

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“complaints of intermittent numbness” in the hand and “pain on the lateral side of arm up to

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elbow” (AT 308, 311, 314), or a long-term treatment goal to “achieve functional range of motion

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of the left wrist/forearm” (AT 315). It does not consider 2008 records of “ongoing left wrist and

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hand issues” (AT 338), and surgery on the left hand for nerve and tendon entrapments (AT 346).

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Nor does it address 2009 records noting that plaintiff’s “ulnar nerve symptoms appear to be mild”

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(AT 349) and that plaintiff “has achieved a good range of motion with good strength” but still had

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“residual numbness” in his left hand. AT 351. Because the ALJ’s opinion nowhere specifically

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considers the limitations posed by plaintiff’s hand and wrist issues, the court finds error in this

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regard and remands for a proper consideration of this evidence.

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As to spinal issues, in step two, the ALJ noted a November 2008 MRI of plaintiff’s

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cervical spine showing only mild degenerative changes and his 2009 complaints of low back pain

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and neck pain, for which he saw a chiropractor. AT 21. Plaintiff’s spinal compression fracture

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predates 2003 medical notes that found a “probable old compression injury of the L1 vertebral

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body, but no other significant pathology identified.” AT 847. A 2009 MRI report found the

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fracture unchanged since 2007. AT 490. As there is little else in the record concerning this issue,

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the court concludes that the ALJ sufficiently considered any limitations posed by plaintiff’s pre-

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2003 spinal compression injury.

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C. Vocational Expert

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Plaintiff next claims that the ALJ was required to have a vocational expert testify at step

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five because the RFC finding included “vaguely specified” environmental limitations. In relevant

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part, the RFC stated: “Due to [claimant’s] seizure activity, he could never climb ladders, ropes or

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scaffolds. He had to avoid working near hazards (machinery, heights, etc.).” Plaintiff argues that

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the second sentence is unclear as to “what specific hazards the RFC contemplates.” (ECF No. 17

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at 13.) Citing the Social Security Ruling (SSR) 96-9 on environmental restrictions3, plaintiff

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SSR 96-9 explains the SSA’s policies regarding the impact of a RFC assessment for less than a
full range of sedentary work on an individual’s ability to do other work. It provides in part:
An "environmental restriction" is an impairment-caused need to avoid an environmental condition
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argues that because he was precluded from unspecified workplace hazards, “the occupational base

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for less than a full range of sedentary work may . . . be significantly eroded,” requiring the

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testimony of a VE.

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The Medical-Vocational Guidelines (“the grids”) are in table form. The tables present

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various combinations of factors the ALJ must consider in determining whether other work is

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available. See generally Desrosiers v. Sec’y of Health and Human Servs., , 846 F.2d 573, 577-78

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(9th Cir. 1988). The factors include residual functional capacity, age, education, and work

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experience. For each combination, the grids direct a finding of either “disabled” or “not

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disabled.”

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There are limits on using the grids, an administrative tool to resolve individual claims that

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fall into standardized patterns: “[T]he ALJ may apply [the grids] in lieu of taking the testimony

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of a vocational expert only when the grids accurately and completely describe the claimant’s

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abilities and limitations.” Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler

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v. Campbell, 461 U.S. 458, 462 n.5 (1983). The ALJ may rely on the grids, however, even when

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a claimant has combined exertional and nonexertional limitations, if nonexertional limitations are

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not so significant as to impact the claimant’s exertional capabilities. Bates v. Sullivan, 894 F.2d

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1059, 1063 (9th Cir. 1990), overruled on other grounds, Bunnell v. Sullivan, 947 F.2d 341 (9th

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in a workplace. Definitions for various workplace environmental conditions are found in the
SCO; e.g., "extreme cold" is exposure to nonweather-related cold temperatures.
In general, few occupations in the unskilled sedentary occupational base require work in
environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards.
The "hazards" defined in the SCO are considered unusual in unskilled sedentary work. They
include: moving mechanical parts of equipment, tools, or machinery; electrical shock; working in
high, exposed places; exposure to radiation; working with explosives; and exposure to toxic,
caustic chemicals. Even a need to avoid all exposure to these conditions would not, by itself,
result in a significant erosion of the occupational base.

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Since all work environments entail some level of noise, restrictions on the ability to work in a
noisy workplace must be evaluated on an individual basis. The unskilled sedentary occupational
base may or may not be significantly eroded depending on the facts in the case record. In such
cases, it may be especially useful to consult a vocational resource.

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Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis.
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Cir. 1991); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see also Odle v. Heckler, 707

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F.2d 439 (9th Cir. 1983) (requiring significant limitation on exertional capabilities in order to

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depart from the grids).

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“The ALJ can use the [G]rids without vocational expert testimony when a non-exertional

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limitation is alleged because the [G]rids provide for the evaluation of claimants asserting both

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exertional and non-exertional limitations. But the [G]rids are inapplicable when a claimant’s

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non-exertional limitations are sufficiently severe so as to significantly limit the range of work

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permitted by the claimant’s exertional limitations.” Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th

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Cir. 2007) (citations and quotation marks omitted). In such instances, the testimony of a

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vocational expert is required.

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Here, the RFC stated that due to his seizures, plaintiff should not work on ladders, ropes

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or scaffolds and should avoid working near hazards such as machinery, heights, “etc.” There is

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no reason to believe the “etc.” signified noise, odors, or dust – the only environmental limitations

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that SSR 96-9p requires to be “evaluated on an individual basis.” Moreover, SSR 85-15 explains:

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“A person with a seizure disorder who is restricted only from being on unprotected elevations and

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near dangerous moving machinery is an example of someone whose environmental restriction

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does not have a significant effect on work that exist at all exertional levels.” Based on the above

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and the existing record, the court concludes that the ALJ did not err in applying the grids. See

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Bragdon v. Astrue, 2010 WL 1342684, *7 (E.D. Cal. March 31, 2010) (ALJ did not err in

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applying grids to plaintiff with seizure precautions in RFC).

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D. Side Effects of Medication

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Lastly plaintiff asserts that, although he was prescribed phenobarbital, a powerful

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anticonvulsant, and propranolol, a beta blocker, the ALJ erroneously failed to consider these

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medications’ side effects or any associated functional limitations.

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Medical notes indicate that multiple times, plaintiff was taking phenobarbital when he was

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arrested or investigated for intoxication, even though he never drank alcohol. AT 271-272, 284,

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358, 370. In reciting the medical evidence, the ALJ noted plaintiff’s 2005 arrest for intoxication

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though he did not drink, and elsewhere noted plaintiff’s testimony that “[i]t was his seizure
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medication and not alcohol that caused his DUI.” AT 20-21, 25. The ALJ also considered that

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plaintiff was medically cleared to drive in 2009. AT 25, 48-49, 284 (2006 record in which

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neurologist “see[s] no reason medically he cannot drive” even after arrest). Aside from the

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arrests, there is little evidence that plaintiff’s medications caused disabling side effects. See AT

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885 (neurologist’s 2003 note that plaintiff’s dosage of phenobarbital cased “no side effects.”).

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Thus the court finds no error in this regard.

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CONCLUSION

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

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1. Plaintiff’s motion for summary judgment (ECF No. 17) is granted;

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2. Defendant’s cross-motion for summary judgment (ECF No. 20) is denied;

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3. The Commissioner’s decision is reversed;

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

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5. The Clerk of the Court shall enter judgment for plaintiff and close this case.

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Dated: September 13, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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