Betts v. Colvin

Filing 20

ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS. Signed by JUDGE ALAN C. KAY on 06/15/2017. The Court REVERSES the Commissioner's decision denying Social S ecurity disability benefits and REMANDS to the ALJ for further proceedings consistent with this Opinion (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
MELODY BETTS-COSSENS for
)
CHRISTOPHER MARCUS BETTS,
)
)
Plaintiff,
)
v.
) Civ. No. 16-00409 ACK-KJM
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL
SECURITY AND REMANDING FOR FURTHER PROCEEDINGS
For the reasons to be discussed in its written order,
the Court REVERSES the decision of the Commissioner and REMANDS
for further administrative proceedings consistent with this
Order.
BACKGROUND
On June 3, 2012, Plaintiff Christopher Marcus Betts
(“Plaintiff”) filed an application for Social Security
Disability Insurance (“SSDI”) benefits.

AR 18.

Plaintiff also

filed for supplemental security income (“SSI”) on June 14, 2012.
Id.

In both applications, Plaintiff alleged disability

beginning October 25, 2010.

Id.

The application was initially

denied on November 23, 2012, and upon reconsideration on
September 12, 2013.

AR 121-25, 128-36.

Plaintiff then

requested a hearing before an administrative law judge (“ALJ”),

1

which was held on August 11, 2014.

AR 36-64.

On October 31,

2014, the ALJ issued her written decision finding Plaintiff not
disabled.

AR 30.

Plaintiff filed a request with the Appeals

Council to review the ALJ’s decision on December 16, 2014.
12-14.

Plaintiff passed away on January 11, 2015.

4; AR 614, 638.

AR

Complaint ¶

The Appeals Council denied his request and

adopted the ALJ’s decision as the final decision of the
Commission on June 20, 2016.

AR 2-7.

Plaintiff’s former wife, on behalf of Plaintiff, filed
a complaint on June 26, 2016 seeking a review of the denial of
Plaintiff’s applications for SSDI and SSI benefits.

ECF No. 1.

On March 15, 2017, Plaintiff filed his opening brief.
14 (“Opening Br.”).

ECF No.

Defendant, the Acting Commissioner of

Social Security1 (“Commissioner”), filed her answering brief on
May 4, 2017.

ECF No. 16 (“Ans. Br.”).

reply brief on May 15, 2017.

Plaintiff filed his

ECF No. 17 (“Reply Br.”).

The Court held a hearing on June 13, 2017 regarding
Plaintiff’s requested review of the Commissioner’s decision.
STANDARD
A district court has jurisdiction pursuant to 42

1

Pursuant to Federal Rule of Civil Procedure 25(d), current
Acting Commissioner of Social Security Nancy A. Berryhill has
been automatically substituted in place of the original
defendant Carolyn W. Colvin.

2

U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security.2
A final decision by the Commissioner denying Social
Security disability benefits will not be disturbed by the
reviewing district court if it is free of legal error and
supported by substantial evidence.

See 42 U.S.C. § 405(g); Dale

v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016) (reviewing a
district court’s decision de novo).

Even if a decision is

supported by substantial evidence, it “will still be set aside
if the ALJ did not apply proper legal standards.”

See Gutierrez

v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).
In determining the existence of substantial evidence,
the administrative record must be considered as a whole,
weighing the evidence that both supports and detracts from the
Commissioner’s factual conclusions.

See id.

“Substantial

evidence means more than a scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
(internal quotation marks omitted).

Id.

“If the evidence can

reasonably support either affirming or reversing, the reviewing
court may not substitute its judgment for that of the
2

42 U.S.C. § 1383(c)(3) incorporates the judicial review
standards of 42 U.S.C. § 405(g), making them applicable to
claims for supplemental security income.

3

Commissioner.”

Id. (internal quotation marks omitted).

Rather,

courts “leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the
record.”

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1098 (9th Cir. 2014).
DISCUSSION
“To establish a claimant’s eligibility for disability
benefits under the Social Security Act, it must be shown that:
(a) the claimant suffers from a medically determinable physical
or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous
period of not less than twelve months; and (b) the impairment
renders the claimant incapable of performing the work that the
claimant previously performed and incapable of performing any
other substantial gainful employment that exists in the national
economy.”

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

1999); see 42 U.S.C. § 423(d)(2)(A).

A claimant must satisfy

both requirements in order to qualify as “disabled” under the
Social Security Act.
I.

Tackett, 180 F.3d at 1098.

The Social Security Administration’s Five-Step
Process for Determining Disability

The Social Security regulations set forth a five-step
sequential process for determining whether a claimant is
disabled.

Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.

4

2005); see 20 C.F.R. § 404.1520.3

“If a claimant is found to be

‘disabled’ or ‘not disabled’ at any step in the sequence, there
is no need to consider subsequent steps.”
1003 (citations omitted in original).

Ukolov, 420 F.3d at

The claimant bears the

burden of proof as to steps one through four, whereas the burden
shifts to the Social Security Administration (“SSA”) for step
five.

Tackett, 180 F.3d at 1098.
At step one the ALJ will consider a claimant’s work

activity, if any.

20 C.F.R. § 404.1520(a)(4)(i).

If the ALJ

finds the claimant is engaged in substantial gainful activity he
will determine that the claimant is not disabled, regardless of
the claimant’s medical condition, age, education, or work
experience.

20 C.F.R. § 404.1520(b).

Substantial gainful

activity is work that is defined as both substantial – i.e. work
activity involving significant physical or mental activities –
and gainful – i.e. work activity done for pay or profit.
C.F.R. § 404.1572.

20

If the ALJ finds that the claimant is not

engaged in substantial gainful activity, the analysis proceeds
to step two.

Tackett, 180 F.3d at 1098.

Step two requires the ALJ to consider the medical
severity of the claimant’s impairments.
3

20 C.F.R. § 404.1520(a)

As the relevant provisions governing SSI set forth in 20
C.F.R. Part 416 are identical to those for SSDI, as set forth in
20 C.F.R. Part 404, the Court will only cite to the latter.

5

(4)(ii).

Only if the claimant has an impairment or combination

of impairments that “significantly limits [his] physical or
mental ability to do basic work activities” will the analysis
proceed to step three.

20 C.F.R. § 404.1520(c).

If not, the

ALJ will find the claimant is not disabled and the analysis
stops.

20 C.F.R. § 404.1520(a)(4)(ii).
The severity of the claimant’s impairments is also

considered at step three.

20 C.F.R. § 404.1520(a)(4)(iii).

Here, the ALJ will determine whether the claimant’s impairments
meet or medically equal the criteria of an impairment
specifically described in the regulations.
C.F.R. Part 404, Subpart P, App. 1.

Id.; see also 20

If the impairments do meet

or equal these criteria, the claimant is deemed disabled and the
analysis ends.

20 C.F.R. § 404.1520(a)(4)(iii).

analysis proceeds to step four.

If not, the

20 C.F.R. § 404.1520(e).

Step four first requires the ALJ to determine the
claimant’s residual functional capacity (“RFC”).

Id.

RFC is

defined as the most the claimant can still do in a work setting
despite his physical and mental limitations.
404.1545(a)(1).

20 C.F.R. §

In assessing a claimant’s RFC, the ALJ will

consider all of the relevant evidence in the claimant’s case
record regarding both severe and non-severe impairments.
C.F.R. § 404.1545.

20

This assessment is then used to determine

whether the claimant can still perform his past relevant work.
6

20 C.F.R. § 404.1520(e).

Past relevant work is defined as “work

that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for
[the claimant] to learn to do it.”

20 C.F.R. § 404.1560(b)(1).

The ALJ will find that the claimant is not disabled if he can
still perform his past relevant work, at which point the
analysis will end.

Otherwise, the ALJ moves to step five.

In the fifth and final step, the ALJ will once again
consider the claimant’s RFC, as well as his age, education, and
work experience, in order to determine whether the claimant can
perform other work.

20 C.F.R. § 404.1520(a)(4)(v).

Here, the

Commissioner is responsible for providing “evidence that
demonstrates that other work exists in significant numbers in
the national economy that [the claimant] can do.”
404.1560(c)(2).

20 C.F.R. §

If the claimant is unable to perform other

work, he is deemed disabled; if he can make an adjustment to
other available work, he is considered not disabled.

20 C.F.R.

§ 404.1520(g)(1).
II.

The ALJ’s Analysis

The ALJ found that at step one, Plaintiff had not
engaged in gainful activity since October 25, 2010, the alleged
onset date, and at step two, that he suffered from the following
severe impairments: cirrhosis of the liver, hypertension,
nonalcoholic steatohepatitis, attention deficit hyperactivity
7

disorder, mood disorder, and a history of alcohol abuse.
21.

AR 20-

Plaintiff disagrees with this determination because he also

believes that he had a severe impairment of psoriasis.

Opening

Br. at 5.
At the third step, the ALJ found that Plaintiff did
not have an impairment or a combination of impairments that met
or medically equaled the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.

AR 21.

The ALJ did not

discuss whether Plaintiff met listing 8.05 which covers skin
conditions, such as psoriasis.
Moving to step four, the ALJ determined that Plaintiff
has the RFC to perform light work.

AR 22.

That is, he could:

lift and carry up to 10 pounds frequently and 20 pounds
occasionally and stand, walk, or sit 6 hours out of an 8-hour
workday with customary breaks.

Id.

In addition, the ALJ

determined that Plaintiff could:
occasionally kneel, stoop, crawl, and
crouch; occasionally climb ramps and stairs;
never climb ladders, ropes, or scaffolds;
frequently use the upper extremities for
fine and gross manipulations and reaching in
all directions; sustain concentration and
attention, persistence and pace in two hour
blocks of time to complete a normal workday
. . . interact and respond appropriately to
coworkers, supervisors, and the general
public . . . respond appropriately to
routine changes in the work setting . . .
understand, remember, and carry out . . .
both detailed and complex tasks; and he
would be off task 5% of the workday due to
8

distractions from psychologically based
symptoms.
Id.

Based on this RFC, the ALJ determined at step four that

Plaintiff is able to perform past relevant work as a “drafter
designer”4 and denied Plaintiff’s claim on this basis.5
30.

AR 29-

Plaintiff disagrees and believes that he was unable to

perform past relevant work.
III.

Opening Br. at 6.

Whether the ALJ Properly Considered Evidence of
Plaintiff’s Psoriasis
i. Whether the ALJ Properly Evaluated Dr.
Kim’s Opinion

Plaintiff argues that the ALJ improperly rejected the
opinion of Plaintiff’s primary treating physician, Dr. Jonathan
Kim, that Plaintiff’s psoriasis would impact his ability to
work.

Plaintiff argues that this error resulted in improper

findings at steps two and three and the RFC determination.
Opening Br. at 17; Reply Br. at 3-4.
A treating physician’s opinion should be given
controlling weight when it is “supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case
record.”

Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014)

4

Plaintiff previously worked as a project manager,
designing swimming pools. AR 240.
5
Having determined that Plaintiff was able to perform past
relevant work, the ALJ did not reach step five.

9

(alteration in original).

“To reject an uncontradicted opinion

of a treating physician, the ALJ must provide clear and
convincing reasons that are supported by substantial evidence.”
Id. at 1160-61 (internal quotation marks and citation omitted).6
These reasons cannot be a list of objective findings followed by
bare conclusions.
Cir. 1988).

See Embrey v. Brown, 849 F.2d 418, 421 (9th

Rather, the ALJ must put forth her own

interpretations of the objective evidence and explain how these
relate to the specific medical opinions and findings she
rejects.

Id. at 421-22.
On March 26, 2014, Dr. Kim reported that Plaintiff had

6

Defendant argues that Dr. Kim’s opinion was controverted
by the opinion of Dr. Kevin Adams, Plaintiff’s consultative
examiner, and Dr. Robert Dy, Plaintiff’s treating
gastroenterologist. If Dr. Kim’s opinion was controverted, then
a different standard would apply and the ALJ could only reject
it by providing “specific and legitimate reasons that are
supported by substantial evidence.” Ghanim, 763 F.3d at 1161.
The main focus of Dr. Adams’s examination is Plaintiff’s
liver cirrhosis. AR 450. He solely mentioned that Plaintiff
had psoriasis. AR. 450-455. Dr. Adams opined that Plaintiff’s
functional capacity was not limited. AR 455. Dr. Dy merely
stated that the patient was troubled by psoriasis, which he
feels has slowly improved. AR 482. However, neither of these
doctors opined on whether Plaintiff’s psoriasis would impact his
ability to work. See AR 450-55, 474-78, 482-87. Therefore, the
“clear and convincing” standard is appropriate here.
However, even if the Court were to apply the “specific and
legitimate” standard as opposed to the “clear and convincing”
standard, the Court notes that its ultimate finding—that the ALJ
erred in evaluating Dr. Kim’s opinion—would be the same because
the ALJ did not provide any specific and legitimate reasons for
rejecting it.

10

psoriasis that has persisted for at least three months despite
continuing treatment.

AR 552.

Dr. Kim further reported that

the pain, itching, and sensitivity from the psoriasis would
impact Plaintiff’s ability to work.

Id.

He said that the

psoriasis will cause Plaintiff discomfort throughout the day.
Id.

Based on this conclusion and other findings, Dr. Kim

concluded that Plaintiff was not capable of working an 8-hour
workday of 40 hours per week.

AR 550.

The ALJ noted Dr. Kim’s opinion on the psoriasis.
28.

AR

The ALJ rejected Dr. Kim’s functional assessment as a whole

because it was not supported by medically acceptable clinical or
diagnostic findings and was inconsistent with the objective
medical evidence and Dr. Kim’s own treatment records.7

7

The ALJ’s opinion states:

Dr. Kim indicated that the claimant’s
symptoms were chronic fatigue and sleep
disturbance, he has not been referred for
liver transplant, and his psoriasis affects
his ability to work. Dr. Kim concluded the
claimant was not capable of working an 8hour workday 40 hours per week. The
undersigned finds this conclusion has no
probative value and rejects it. As an
opinion on an issue reserved to the
Commissioner, this statement is not entitled
to controlling weight and is not given
special significance . . . Dr. Kim . . . did
not provide medically acceptable clinical or
diagnostic findings to support the
functional assessment. This opinion is
(continued . . . )
11

Id.

However, the ALJ did not explain why she was rejecting Dr. Kim’s
particular opinion regarding the psoriasis.

Id.

In regard to

the psoriasis, the ALJ only mentioned that physical examinations
showed multiple scale plaques on Plaintiff’s knees and elbows.
Id.
While the ALJ “is not required to discuss evidence
that is neither significant nor probative,” Howard ex rel. Wolff
v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), an ALJ errs by
improperly ignoring significant and probative record evidence.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (finding
error where the ALJ “improperly ignored or discounted
significant and probative evidence in the record”); see Vincent
ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)
(holding that the ALJ “must explain why significant probative
evidence has been rejected” (internal citation and quotation
omitted)).

“Medical opinions that conflict with the ALJ’s

findings are considered significant and probative.”

Montalbo v.

Colvin, Civ. No. 16-00306 ACK-RLP, 2017 WL 434001, at *10 (D.

inconsistent with the objective medical
evidence as whole already discussed above in
this decision. Most importantly, this
opinion is also inconsistent with Dr. Kim’s
own treatment records as described in detail
above.
AR 28 (emphasis added).

12

Haw. Feb. 1, 2017) (citing Stewart v. Astrue, No. C12-99, 2012
WL 3089650, at *7 (W.D. Wash. Aug. 27, 2012)).
Although the ALJ did not have to agree with each of
Dr. Kim’s opinions, she must have, at the very least, offered
sufficiently specific and legitimate reasons for each opinion
she rejected; the ALJ may not specifically reject some opinions
and wholly disregard others.

See Smolen v. Chater, 80 F.3d

1273, 1286 (9th Cir. 1996) (finding the ALJ legally erred by
disregarding certain medical opinions and making contrary
findings, despite discussing other medical opinions from the
same doctors); Khan v. Colvin, No. EDCV 12-2106-MAN, 2014 WL
2865173, at *8 (C.D. Cal. June 24, 2014) (“Thus, while the ALJ
need not accept the full extent of Dr. Skopec’s opinion, the ALJ
may not reject it, or significant parts of it, without giving
specific and legitimate reasons for so doing.”).
District courts routinely find error where the ALJ
fails to address opinions or limitations found by treating
physicians.

For example, in Harris v. Berryhill, the court held

that the ALJ erred in failing to address the treating
physicians’ opinions regarding the claimant’s manipulative
restrictions in the RFC determination or to identify evidence
undermining them.

Case No. 1:15-CV-01429-JLT, 2017 WL 836457,

at *9-10 (E.D. Cal. Mar. 3, 2017).

Similarly, in Beckstead v.

Colvin, the court concluded that the ALJ erred in failing to
13

provide any reason, much less a specific and legitimate one, for
rejecting a treating physician’s findings that the plaintiff
needed to be off his feet every 30 minutes and could not do
overhead work.

No. CV 11-10622 AN, 2013 WL 663442, at *3 (C.D.

Cal. Feb. 22, 2013).

Therefore, the ALJ erred because she

failed to offer any reason for rejecting Dr. Kim’s opinion as to
Plaintiff’s psoriasis.8

8

Even if, assuming arguendo, the Court were to find that
the ALJ’s reasons for rejecting Dr. Kim’s functional assessment
as a whole applied to her rejection of Dr. Kim’s opinion as to
Plaintiff’s psoriasis, the Court’s conclusion would not change.
The generic assertions the ALJ provides—that Dr. Kim’s opinion
was not supported by medically acceptable clinical or diagnostic
findings, was inconsistent with the objective medical evidence
and his own treatment records, and heavily relied on Plaintiff’s
report of symptoms and limitations—without more are
insufficient. See, e.g., Embrey, 849 F.2d at 421-22 (9th Cir.
1988) (finding inadequate the ALJ’s conclusion that “objective
factors point towards an adverse conclusion” without making any
“effort to relate any of these objective factors to any of the
specific medical opinions and findings he rejects”); Hart v.
Colvin, 150 F. Supp. 3d 1085, 1090-91 (D. Ariz. 2015) (finding
the ALJ failed to give sufficiently specific reasons for
rejecting a medical opinion where he failed to identify both the
specific findings that were inconsistent and the specific
contrary medical evidence); Rowsey v. Colvin, No. CV 13-5627
RNB, 2014 WL 2711138, at *2 (C.D. Cal. June 13, 2014) (holding
that the conclusory statement that the opinion was inconsistent
with doctor’s own treatment records and those of any other
doctor was not sufficiently specific).
Indeed, the ALJ provided no examples of where the record
supported her findings of inconsistencies between Dr. Kim’s
opinion on the psoriasis and his own treatment records or the
objective medical evidence. The ALJ also did not explain how
Dr. Kim’s opinion on the psoriasis was not supported by
medically acceptable clinical or diagnostic findings. Nor did
the ALJ link the additional reason she provided for rejecting
(continued . . . )
14

Defendant argues that the ALJ’s rejection of Dr. Kim’s
opinion on Plaintiff’s psoriasis was proper because: (1) the ALJ
decided to give greater weight to the opinion of examining
doctor, Dr. Kevin Adams, instead of Dr. Kim; (2) Dr. Kim’s
opinion was inconsistent with his own treatment records and the
record as a whole; and (3) “additional records by the ALJ
support [the] RFC finding and consideration of Plaintiff’s
psoriasis,” such as treatment notes from Dr. Robert Dy.
Br. at 6-8.

Ans.

However, the Court cannot affirm the ALJ’s decision

on grounds which the ALJ did not rely.

This Court is

“constrained to review the reasons the ALJ asserts.”

Burrell v.

Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (internal quotation
marks and citation omitted).

Otherwise, “a reviewing court will

be unable to review those reasons meaningfully and without
improperly substituting [its] conclusions for the ALJ’s or
speculating as to the grounds for the ALJ’s conclusions.”
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)
(internal quotation marks and alteration omitted); see Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2008)

Dr. Kim’s overall conclusion—that Dr. Kim relied heavily on
Plaintiff’s subjective report of symptoms and limitations—to Dr.
Kim’s opinion on Plaintiff’s psoriasis. Therefore, the Court
finds that the ALJ erred because she did not provide clear and
convincing reasons for rejecting Dr. Kim’s opinion on
Plaintiff’s psoriasis.

15

(“Long-standing principles of administrative law require us to
review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ – not post hoc rationalizations that
attempt to intuit what the adjudicator may have been
thinking.”).

Therefore, the Court cannot consider Defendant’s

additional arguments, which the ALJ did not make herself.
Furthermore, as previously discussed, Dr. Adams did
not opine on whether Plaintiff’s psoriasis would impact
Plaintiff’s ability to work and his report merely mentioned that
Plaintiff had psoriasis.

AR 450-55.

Likewise, Dr. Dy merely

stated that the patient was troubled by psoriasis, which he
feels has slowly improved, but did not opine on whether the
psoriasis would impact Plaintiff’s ability to work.

AR 482.

Accordingly, the Court does not find Defendant’s arguments
persuasive.
Plaintiff further argues that this error was not
harmless because it impacted the ALJ’s findings at steps two and
three and the RFC determination.

Had the ALJ properly

considered Dr. Kim’s opinion, the ALJ might have: (1) found
psoriasis to be severe at step two, which would further impact
the ALJ’s analysis at step three; and/or (2) given a more

16

restrictive RFC than the one given in her decision.9

See Crose

v. Colvin, No. C12-5590 BHS, 2014 WL 118937, at *6 (W.D. Wash.
Jan. 13, 2014) (holding that failure to provide specific and
legitimate reasons for rejecting the physician’s opinion was not
harmless where crediting the opinion would have led to a more
restrictive RFC).

Therefore, the Court finds that the ALJ’s

failure to provide clear and convincing reasons for rejecting
Dr. Kim’s opinion on Plaintiff’s psoriasis was harmful.
ii. Whether the ALJ Properly Evaluated the
Evidence of Psoriasis at Step Two
Plaintiff further argues that the ALJ erred at step
two for failing to find Plaintiff’s psoriasis to be severe.
Defendant seemingly concedes this point because, as discussed in

9

Defendant argues that Plaintiff’s psoriasis would not meet
a listing at step three. The Court declines to consider this
argument because, given that the ALJ did not reach this issue,
Plaintiff has not based his appeal on step three and in turn has
not argued that the psoriasis would in fact meet a listing
before this Court. However, the Court finds that because the
ALJ found the psoriasis non-severe at step two, the issue of
whether the psoriasis met or equaled Listing 8.05 was not
present on appeal. Opening Br. at 17.
Defendant also incorrectly argues that Plaintiff did not
raise the argument that his psoriasis met a listing until after
the ALJ’s decision. In Plaintiff’s pre-trial brief to the ALJ,
Plaintiff argues that “the psoriatic condition arguably meets
the listings. Even without considering the listings, if
[Plaintiff’s] condition flares up on a regular basis that
affects his ability to do SGA.” AR 310.
On remand, Plaintiff will have an opportunity to establish
that the psoriasis meets or equals a listing at step three,
which the ALJ will then have to evaluate.

17

more detail herein, Defendant merely presents an argument to
show why such error was harmless.

Ans. Br. at 6.

At step two, an impairment or combination of
impairments is considered “severe” if it significantly limits an
individual’s physical or mental abilities to do basic work
activities.

Wilson v. Colvin, 583 F. App’x 649, 651 (9th Cir.

2014) (citing Social Security Ruling (“SSR”) 96-3p, 1996 WL
374181, at *1 (July 2, 1996)); see also Hegel v. Astrue, 325 F.
App’x 580, 581 (9th Cir. 2009) (“The evaluation of whether an
impairment(s) is ‘severe’ . . . requires an assessment of the
functionally limiting effects of an impairment(s) on an
individual’s ability to do basic work activities.”

(citing SSR

96-3p)).

The threshold to find a severe impairment is de

minimis.

See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.

2005); see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996) (noting that “the step-two inquiry is a de minimis
screening device to dispose of groundless claims”).
The record is full of references to Plaintiff’s
psoriasis and Plaintiff’s psoriasis treatment.

See, e.g., AR

55, 317-30, 338-40, 433, 450, 462-67, 482, 505, 525-27, 592.
Plaintiff’s elbow was bleeding at the hearing from the
psoriasis.

AR 55.

Dr. Kim stated that Plaintiff had psoriasis

that has persisted for at least three months despite continuing
treatment as prescribed and opined that the psoriasis impacted
18

Plaintiff’s ability to work because of pain and itching from the
rash which would cause discomfort throughout the day.

AR 552.

In addition, Plaintiff testified that the psoriasis would limit
his ability to work because the itching at night impacted his
ability to sleep.

AR 23, 55-56.

In light of this evidence and

the de minimis threshold, the Court finds that the ALJ erred in
holding that Plaintiff’s psoriasis was a non-severe condition at
step two.

See Beason v. Comm’r of Soc. Sec., 1:15-CV-01281-DAD-

EPG, 2017 WL 603495, at *5-6 (E.D. Cal. Feb. 14, 2017) (holding
that the ALJ erred in failing to find Plaintiff’s psoriasis
severe because the evidence showed that Plaintiff’s psoriasis
caused him significant pain even when the condition was treated
by medication).
Defendant argues that even if the ALJ should have
found the psoriasis severe at step two, that error would be
harmless because the ALJ “addressed the condition extensively
when determining Plaintiff’s RFC.”

Ans. Br. at 6 (citing Lewis

v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding the ALJ’s
error in failing to list an impairment at step two was harmless
because the ALJ extensively discussed the impairment at step
four and considered any limitations posed by the impairment at
step four)).

The Court finds Lewis distinguishable.

Nowhere in

the ALJ’s opinion does she specifically consider the limitations
posed by the psoriasis or discuss it in any detail.
19

Therefore,

the Court finds that the ALJ’s error in regard to the
consideration of his psoriasis was harmful and remands for a
proper consideration of the evidence.
IV.

Whether the ALJ Erred by Failing to Discuss Parts
of Plaintiff’s WAIS-IV Sub-Test Results

Plaintiff argues that the ALJ erred because she did
not discuss Plaintiff’s WAIS-IV test results other than
Plaintiff’s full scale IQ of 92.10

Plaintiff’s psychological

consultative examiner, Dr. Noelani Perreira, Psy.D., performed
WAIS-IV tests in October 2012.

AR 439-47.

In regard to working

memory, she found that Plaintiff’s “ability to sustain
attention, concentrate, and exert mental control is in the low
average range.

He performed better than approximately 18% of

his peers in this area.”

AR 443.

Dr. Perreira further

explained, “A weakness in mental control may make the processing
of complex information more time-consuming for [Plaintiff],
draining his mental energies more quickly as compared to others
at his level of ability, and perhaps result in more frequent
errors on a variety of learning or complex work tasks.”

AR 443.

As to processing speed, Dr. Perreira found Plaintiff’s

10

The Wechsler Adult Intelligence Scale (“WAIS”) is used to
assist psychologists and other professionals in measuring
intelligence. See About The Wechsler Intelligence Test,
Wechsler Test, http://wechslertest.com/about-wechslerintelligence-test (last visited June 14, 2017).

20

ability to process simple or routine visual material without
making errors is in the low average range when compared to his
peers, performing better than only 14% of them in processing
speed tasks.

AR 444.

Dr. Perreira further explained:

Processing visual material quickly is an
ability that [Plaintiff] performs poorly as
compared to his verbal reasoning ability.
Processing speed is an indication of the
rapidity with which [Plaintiff] can mentally
process simple or routine information
without making errors. Because learning
often involves a combination of routine
information processing (such as reason) and
complex information processing (such as
reasoning), a weakness in the speed of
processing routine information may make the
task of comprehending novel information more
time-consuming and difficult for
[Plaintiff]. Thus, this weakness in simple
visual scanning and tracking may leave him
less time and mental energy for the complex
task of understanding new material.
Id.

Dr. Perreira performed other WAIS-IV tests, including

general intellectual ability, verbal comprehension, and
perceptual reasoning.

AR 442-44.

Based on the findings of all

of these tests and others, however, Dr. Perreira found that in
regard to residual functioning capacity Plaintiff was not
significantly limited in understanding and memory, sustained
concentration and persistence, social interaction, and
adaptation.

AR 445-46.

The ALJ gave significant, but not full weight, to Dr.
Perreira’s opinions.

AR 28-29.

She detailed Dr. Perreira’s

21

findings, including that Plaintiff reported a history of ADHD
and bipolar disorder and that in Plaintiff’s mental status
examination he revealed an overall unremarkable mental status.
AR 27.

The ALJ discussed that Dr. Perreira found that Plaintiff

was able to accurately respond to questions, his speech was
organized and articulate, his thought organization was linear
and consistent, his perception was normal, and his insight and
judgment were normal.

Id.

The ALJ also stated that Plaintiff

had an IQ of 92 and that Dr. Perreira assessed a Global
Assessment of Functioning (“GAF”) score of 63, indicating mild
symptoms or difficulty functioning.

Id.

The ALJ noted that Dr.

Perreira opined that the claimant was not significantly limited
in all mental functional areas.

Id.

The ALJ, however, did not

discuss his WAIS-IV test results related to working memory or
processing speed.

In making her RFC finding on Plaintiff’s

mental limitations, the ALJ concluded, inter alia, that
Plaintiff would be able to sustain concentration and attention,
persistence and pace in two-hour blocks of time in order to
complete a normal workday and that Plaintiff could understand,
remember and carry out detailed and complex tasks.

AR 22.

As the Court previously discussed, the ALJ “is not
required to discuss evidence that is neither significant nor
probative,” Howard, 341 F.3d at 1012, but errs by improperly
ignoring significant and probative record evidence.
22

Hill, 698

F.3d at 1161; see Houghton v. Comm’r of Soc. Sec. Admin., 493 F.
App’x 843, 845 (9th Cir. 2012) (rejecting claim that ALJ failed
to consider evidence of, inter alia, claimant’s heart condition
and sleep apnea where claimant “has not shown that the ALJ
discounted significant probative evidence of functional
limitations or work-related restrictions” arising from the
conditions).

An ALJ may not reject significant probative

evidence without explanation and must state reasons for
disregarding such evidence.
570–71 (9th Cir. 1995).

Flores v. Shalala, 49 F.3d 562,

Neither party directly discusses what

the Court finds to be the central issue here: whether
Plaintiff’s WAIS-IV sub-test results regarding working memory
and processing speed were significant and probative.11

11

Plaintiff makes two arguments seemingly in attempt to
demonstrate that the WAIS-IV test results are significant.
First, Plaintiff states that the WAIS-IV test results are
discussed in great detail in the SSA’s Program Operations Manual
System (“POMS”), which states that reporting of sub-test scores
is essential where cognitive deficits require assessment. See
POMS DI 24515.055A. However, Plaintiff also notes that POMS is
not binding on the Commissioner. See Lockwood v. Comm’r Soc.
Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) (“POMS
constitutes an agency interpretation that does not impose
judicially enforceable duties on either this court or the
ALJ.”).
Second, Plaintiff states that the Supreme Court held in
Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002) that the WAISIII, the predecessor to the WAIS-IV, is the “standard for
instrument in the United States for assessing intellectual
functioning.” Atkins involved the issue of whether mentally
disabled individuals could be subject to the death penalty under
(continued . . . )
23

The Court finds that Plaintiff’s WAIS-IV sub-tests
regarding working memory and processing speech were significant
and probative and therefore the ALJ erred in failing to discuss
why she did not include them in her RFC finding.

In Dawson v.

Colvin, No. C14-501-BJR, 2015 WL 1064413 (W.D. Wash. Mar. 11,
2015), plaintiff argued that the ALJ erred in evaluating a
psychological evaluation.

Id. at *13.

The ALJ credited the

assessment of the plaintiff’s IQ scores but failed to evaluate
the doctor’s conclusion regarding, inter alia, plaintiff’s
processing speed from the WAIS-III test.

Id.

The plaintiff

argued that this error was not harmless because if the ALJ had
adopted the doctor’s conclusion regarding processing speed, the
ALJ’s ultimate decision as to disability would have been
different.

Id.
The court agreed with the plaintiff and held that the

ALJ erred when failing to discuss the test results regarding
processing speed because they were significant and probative
evidence.

Id. at *14.

The court remanded the case, instructing

the ALJ to discuss whether the doctor’s test results and
the Eighth Amendment which prohibits cruel and unusual
punishment. Although these arguments establish that the WAIS-IV
is an important test in determining intellectual functioning and
therefore important to findings of disability in SSI and SSDI
cases generally, these arguments do not address whether the
WAIS-IV sub-tests at issue were significant and probative in
this case.

24

findings regarding plaintiff’s limited processing speed were
probative of plaintiff’s functioning.

Id.

Likewise, here, the ALJ did not incorporate
Plaintiff’s WAIS-IV sub-test results in regard to working memory
and processing speed into her RFC finding.12

Plaintiff’s results

from the working memory and processing speed sub-tests revealed
functional limitations or work-related restrictions that were
not adopted in the ALJ’s RFC finding, particularly regarding
Plaintiff’s ability to handle detailed and complex tasks.

Cf.

Field v. Colvin, No. C13-05623-RBL-JLW, 2014 WL 2765148, at *6
(W.D. Wash. June 18, 2014) (holding that ALJ did not err when
she ignored objective psychological test evidence because, inter
alia, it did not indicate that additional RFC limitations were
necessary); Roberts v. Astrue, No. EDCV 11-1373 JC, 2012 WL
1032903, at *4 (C.D. Cal. Mar. 27, 2012) (holding that the ALJ’s
failure to discuss medical evidence was not error because it did
not call for functional limitations not already accounted for in
the ALJ’s RFC assessment).

This error was not harmless because

12

As previously discussed, these results concluded that
Plaintiff was only able to sustain attention and concentrate
better than 18% of his peers and that he was only able to
process simple or routine visual material without making errors
better than 14% of his peers. The results further showed that
Plaintiff may perform more frequent errors on a variety of
complex work tasks and leave him less time and mental energy for
the complex task of understanding new material.

25

the Court cannot “confidently conclude that no reasonable ALJ,
when fully crediting the [sub-test results], could have reached
a different disability determination.”
F.3d 1170, 1173 (9th Cir. 2015).

Marsh v. Colvin, 792

If the ALJ had adopted the

doctor’s conclusion regarding working memory and processing
speed, the ALJ’s RFC finding would likely have been different.
This would impact the ALJ’s analysis at step four and five.13
Defendant argues that the ALJ’s RFC finding was proper
because it was supported by substantial evidence from
Plaintiff’s treating psychiatrist, Dr. Rodney K. Yamaki and Dr.
Perreira, and agency regulations require that controlling weight
be given to a treating doctor when that opinion is consistent
with the record and other opinions.
13

See 20 C.F.R. §

Plaintiff, seemingly in an attempt to explain why the
WAIS-IV sub-tests results were significant and probative, argues
that the vocational expert (“VE”) said that Plaintiff would not
be able to return to his prior work when he was questioned about
Plaintiff’s ability to do prior work activity based on the
conclusions in the sub-test scores. However, this is not
precisely what happened at the ALJ’s hearing.
At the ALJ’s hearing, Plaintiff’s attorney asked the VE
whether Plaintiff would be able to perform his past relevant
work if the “processing of complex information [would] not be
done at the normal rate of speed expected by an employer and
there would be frequent errors in doing complex work tasks.” AR
63. Based on this hypothetical, the VE responded that Plaintiff
would not be able to perform past relevant work. Id. However,
Plaintiff’s sub-test scores state that “[a] weakness in mental
control may make the processing of complex information more time
consuming for [Plaintiff] . . . and perhaps result in more
frequent errors on a variety of complex work tasks.” AR 443
(emphasis added).

26

404.1527(c)(2).
Dr. Yamaki opined that Plaintiff was capable of:
understanding and remembering simple work instructions;
maintaining regular job attendance and persisting at simple,
repetitive work tasks on a consistent basis under ordinary
supervision; getting along with supervisors and co-workers if
contact were minimal; and adapting/coping with a low demand,
entry-level job.

AR 435-36.

However, Dr. Yamaki did not opine

on whether Plaintiff would be able to understand, remember, and
carry out both detailed and complex tasks, which the ALJ
specifically concluded in her RFC finding and was, at the very
least, not fully supported by the WAIS-IV sub-test results.

In

addition, the ALJ adopted Dr. Perreira’s RFC opinion that
Plaintiff was not significantly limited but that RFC opinion
failed to discuss Plaintiff’s ability to understand, remember,
and carry out both detailed and complex tasks, which was
addressed in the WAIS-IV sub-test results.
Defendant also argues that the ALJ would be
impermissibly substituting her own opinion for the opinion of a
physician if she were to rely on the WAIS-IV sub-test results in
making her RFC finding.

However, the WAIS-IV sub-test results

are from the report of Plaintiff’s psychological consultative
examiner.

Therefore, the ALJ would not be “playing doctor” if

she relied on these results.

Accordingly, the Court finds that
27

the ALJ erred in failing to discuss why she did not incorporate
the WAIS-IV sub-test results into the RFC determination and
remands the case for the proper consideration of this evidence.14
V.

Harmless Error & Remand

As previously discussed, the errors at issue were not
harmless.

“An error is harmless only if it is inconsequential

to the ultimate nondisability determination . . . or if despite
the legal error, the agency’s path may reasonably be discerned.”
Brown-Hunter, 806 F.3d at 494 (internal quotation marks and
citation omitted) (finding that because the ALJ did not provide
any reasons upon which her conclusion was based, the agency’s
path could not be reasonably discerned).

The Ninth Circuit has

indicated that in order to consider an error harmless, the
reviewing court must be able to “confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have
reached a different disability determination.”

Marsh, 792 F.3d

at 1173 (finding failure to even mention physician’s opinion not
harmless).
Had the ALJ properly considered Dr. Kim’s opinion, the

14

Plaintiff also states the following without any further
discussion: “As to Plaintiff’s subjective complaints, the [ALJ]
found that the objective medical evidence did not support [the]
severity of Plaintiff’s symptoms.” Opening Br. at 14. The
Court does not construe this statement as a basis for the
Plaintiff’s appeal of the ALJ’s decision.

28

evidence of Plaintiff’s psoriasis, and the WAIS-IV sub-test
results, the ALJ would have reached a different finding at step
two and might have reached a different finding at step three.
In addition, the ALJ may have given a more restrictive RFC than
the one given in her decision.

That, in turn, might have led to

a finding that Plaintiff is disabled.

In light of these errors,

this Court cannot confidently conclude that no reasonable ALJ
would reach a different decision.

Accordingly, the ALJ’s errors

were not harmless and her decision must be reversed.
“Remand for further administrative proceedings is
appropriate if enhancement of the record would be useful.”
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
However, where the record is fully developed and “further
administrative proceedings would serve no useful purpose,” a
court should remand for an immediate award of benefits.

Id.

“The decision whether to remand for further proceedings or
simply to award benefits is within the discretion of [the]
court.”
1989).

McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.
However, the Ninth Circuit has cautioned that “[a]

remand for an immediate award of benefits is appropriate . . .
only in rare circumstances.”

Brown-Hunter, 806 F.3d at 495

(internal quotation marks omitted).
In this case, the Court finds that enhancement of the
record would be useful.

The Court, therefore, holds that remand
29

for further proceedings is appropriate for the ALJ to properly
consider the evidence of Plaintiff’s psoriasis, the opinion of
Plaintiff’s treating physician, Dr. Kim, on the psoriasis, and
the WAIS-IV sub-test results.

The ALJ is instructed to take

whatever further action is deemed appropriate and consistent
with this decision.
CONCLUSION
For the foregoing reasons, the Court REVERSES the
Commissioner’s decision denying Social Security disability
benefits and REMANDS to the ALJ for further proceedings
consistent with this Opinion.15
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, June 15, 2017

________________________________
Alan C. Kay
Sr. United States District Judge

Betts v. Berryhill, Civ. No. 16-00409 ACK-KJM, Order Reversing the Decision
of the Commissioner of Social Security and Remanding for Further Proceedings.
15

Plaintiff has requested for the Court to award attorneys’
fees and costs pursuant to 28 U.S.C. § 2412. Opening Br. at 20.
The Court finds Plaintiff to be the prevailing party and
therefore entitled to attorneys’ fees and costs. Plaintiff may
file a separate motion requesting such fees and costs and
providing support for such relief before the Magistrate Judge,
and Defendant will have the opportunity to object to such
request.

30