Wells v. Astrue
Filing
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ORDER Granting in Part 14 Plaintiff's Motion for Summary Judgment; Denying 19 Defendant's Motion for Summary Judgment; Adopting 21 Report and Recommendation in its entirety; Remanding to the Commissioner of the Social Security Administration. The Clerk of Court shall enter judgment in accordance with this Order. Signed by Judge Gonzalo P. Curiel on 6/11/2013. (srm) (Certified copy sent to Social Security Administration)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MARLA WELLS,
Plaintiff,
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CASE NO. 11-CV-02583-GPC (PCL)
vs.
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MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING DEFENDANT’S
CROSS-MOTION FOR
SUMMARY JUDGMENT
[Dkt. Nos. 14, 19]
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INTRODUCTION
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On November 4, 2011, Plaintiff filed this action pursuant to Section 405 of the
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Social Security Act (“Act”). 42 U.S.C. § 1383(c). Plaintiff seeks judicial review of the
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Commissioner of Social Security Administration’s (“Commissioner’s”) final decision
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denying Plaintiff’s application for Supplemental Security Income (“SSI”) under Title
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XVI of the Act. (Complaint, ECF No. 1.) The matter before the Court is the Report
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and Recommendation (“Report”) filed by United States Magistrate Judge Peter C.
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Lewis recommending that Plaintiff’s Motion for Summary Judgment (ECF No. 14) be
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granted in part and Defendant’s Cross-Motion for Summary Judgment (ECF No. 19)
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be denied. (ECF No. 21.) After careful consideration of the pleadings and relevant
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exhibits submitted by the parties, and for the reasons set forth below, this Court
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ADOPTS the Magistrate Judge’s Report in its entirety. It is further ordered that this
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11-CV-02583-GPC (PCL)
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action be remanded to the Social Security Administration for further consideration
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consistent with this opinion.
BACKGROUND1
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On March 31, 2008, Plaintiff filed an application for SSI benefits with the
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Commissioner, alleging disability beginning on January 4, 2008, due to epilepsy, brain
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surgery, bipolar disorder, and high blood pressure. (Administrative Record (“A.R.”)
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96-102, 151.) Plaintiff’s claim was denied at the initial level and again upon
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reconsideration. (A.R. 48-52, 57-61.) On February 16, 2010, Plaintiff appeared with
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counsel and testified before Administrative Law Judge (“ALJ”) Larry B. Parker. On
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March 19, 2010, the ALJ issued a written decision finding that Plaintiff was not
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disabled under Section 1614(a)(3)(A) of the Act from January 4, 2008 through
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March 19, 2010. The ALJ’s decision became the final decision of the Commissioner
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when the Appeals Council denied Plaintiff’s request for a review of the decision on
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September 7, 2011.
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On November 4, 2011, Plaintiff commenced the instant action seeking judicial
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review of Defendant’s decision. (Complaint, ECF No. 1). On September 12, 2012,
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Plaintiff filed a Motion for Summary Judgment. (ECF No. 14.) On October 4, 2012,
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Defendant filed a Cross-Motion for Summary Judgment.
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March 20, 2013, the Magistrate Judge issued a Report recommending that Plaintiff’s
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Motion for Summary Judgment be granted in part, Defendant’s Cross-Motion for
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Summary Judgment be denied, and that the case be remanded for further review by the
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Commissioner. (ECF No. 21.) The docket reflects that no objections to the Report
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have been filed by either party by the April 17, 2013 deadline. (See id.)
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(ECF No. 19.)
On
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The underlying facts set forth in the Report are adopted in toto and referenced as if fully set forth herein. This
Court provides only a brief procedural background.
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DISCUSSION
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I. Legal Standard
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The district court’s duties in connection with a Report of a magistrate judge are
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set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district
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judge must “make a de novo determination of those portions of the report . . . to which
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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings
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or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court
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need not review de novo those portions of a Report to which neither party objects. See
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Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328
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F.3d 114, 1121-22 (9th Cir. 2003) (en banc). When no objections are filed, the Court
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may assume the correctness of the magistrate judge’s findings of fact and decide the
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motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196,
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206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).
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A court “will disturb the denial of benefits only if the decision contains legal error or
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is not supported by substantial evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038
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(9th Cir. 2008) (citations omitted). Substantial evidence is “such relevant evidence as
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a reasonable mind might accept as reasonable to support a conclusion. Id. The
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“evidence must be more than a mere scintilla but not necessarily a preponderance.”
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Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). The court
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will uphold the ALJ's conclusion when the evidence is susceptible to more than one
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rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Finally,
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the court will not reverse an ALJ's decision for harmless error, which exists when it is
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clear from the record that “the ALJ's error was ‘inconsequential to the ultimate
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nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
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2006) (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56
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(9th Cir. 2006)).
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II. Analysis
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The Court received no objections to the Report and no requests for an extension
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of time to file any objections. As such, the Court assumes the correctness of the
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magistrate judge’s factual findings and adopts them in full. See Campbell, 501 F.2d
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at 206. The Court has conducted an independent review of the Report and all relevant
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papers submitted by both parties, and finds that the Report provides a cogent analysis
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of the claims presented in Plaintiff’s Motion for Summary Judgment and Defendant’s
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Cross-Motion for Summary Judgment.
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A. The ALJ’s Finding that Plaintiff’s Depression was Non-Severe is
Harmless Error.
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After reviewing the Report, the administrative record, and the submissions of the
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parties, the Court finds that the Magistrate Judge correctly determined that the ALJ’s
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severity analysis of Plaintiff’s depression symptoms at Step 2 of the Sequential
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Evaluation Process (ECF No. 14 at 6) “does contain error, but that such error was
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ultimately harmless.” (Report, ECF No. 21 at 19.) At Step 2 of the instant case, the
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ALJ does not cite any medical records substantiating his conclusion that Plaintiff’s
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mental health impairments are non-severe. (Id. at 20 (citing 20 C.F.R. § 404.1520a(b-
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e).) The Magistrate Judge correctly states: “[Since] Step 2 operates as a de minimus
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threshold inquiry . . . [t]he ALJ’s lack of explanation at Step 2 is therefore error in
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applying the sequential evaluation process. However, Plaintiff’s concern that Dr.
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Nicholson’s report was not properly incorporated at Step 2 is ultimately harmless since
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Plaintiff’s claim proceeded to Step 5 rather than being denied at Step 2.” Id. (citing
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Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007); see Robbins, 466 F.3d at 885.
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B. The ALJ’s Residual Functional Capacity Determination is Deficient.
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The Magistrate Judge correctly concluded that the ALJ’s Residual Functional
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Capacity (“RFC”) determination at Step 4 is not deficient as a result of the ALJ’s
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failure to use Dr. Nicholson’s report. (Report, ECF No. 21 at 21.) Plaintiff has the
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burden of proving that any alleged error was harmful. See Shinseki v. Sanders, 556
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U.S. 396, 409 (2009) (citations omitted). The ALJ specifically cites Dr. Nicholson’s
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report several times in his decision (see A.R. 22-23) and Plaintiff fails to demonstrate
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how the report was not afforded proper weight. (Report, ECF. No. 21 at 22.)
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The RFC is defective, however, for failing to take into account Ms.
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Zimmerman’s Third Party Functional Report into account. Id. The ALJ is obliged to
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consider all of the evidence in the record, including statements from friends and family.
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20 C.F.R. § 404.953(a). Further, the ALJ is required to consider all evidence from
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acceptable non-medical sources regarding a claimant’s ability to work. See 20 C.F.R.
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§ 404.1513(d)(4); Sprague v. Bowen, 812 F.2d. 1226, 1232 (9th Cir. 1987). The
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Magistrate Judge correctly concluded that the ALJ’s failure to address Ms.
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Zimmerman’s report is significant legal error warranting remand for reconsideration
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of that evidence pursuant to Section 405 of the Act (42 U.S.C. § 1383(c)). Lewis, 498
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F.3d at 503; see also Quitana v. Astrue, 2010 WL 3397411 (E.D. Cal. 2010); Vang v.
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Astrue, 2010 WL 2943153 (E.D. Cal. 2010); Zueger v. Astrue, 2010 WL 3984807
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(C.D. Cal. 2010) (remanding cases for reconsideration where the ALJ failed to
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consider relevant lay testimony). On remand, the ALJ is required to take into account
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Ms. Zimmerman’s statements when making his RFC determination. See 20 C.F.R.
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§ 404.1545(e).
CONCLUSION AND ORDER
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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The findings and conclusions of the Magistrate Judge presented in the
Report and Recommendation are ADOPTED in their entirety;
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Plaintiff’s Motion for Summary Judgment is GRANTED in part; and
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3.
Defendant’s Cross-Motion for Summary Judgment is DENIED.
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IT IS FURTHER ORDERED that this action be remanded to the
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Commissioner of the Social Security Administration for a new hearing before an
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administrative law judge for reconsideration consistent with this opinion. The Clerk
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of Court shall enter judgment in accordance with this Order.
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IT IS SO ORDERED.
DATED: June 11, 2013
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HON. GONZALO P. CURIEL
United States District Judge
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