Kuper v. Commissioner Social Security Administration
Filing
15
OPINION AND ORDER: The Court REVERSES the Commissioners decision and REMANDS this case to the agency for further proceedings consistent with this opinion. (See 12-page opinion for more information.) Signed on 2/5/2024 by Magistrate Judge Andrew D. Hallman. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JOSEPH K., 1
No. 6:23-cv-00311-HL
Plaintiff,
OPINION AND ORDER
v.
COMISSIONER, SOCIAL SECURITY
ADMINISTRATION
Defendant.
_________________________________________
HALLMAN, United States Magistrate Judge:
Plaintiff Joseph K. brings this action under the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the
“Commissioner”). The Commissioner denied Plaintiff’s application for Social Security Income
1
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the
last name for non-governmental parties and their immediate family members.
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(“SSI”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the decision
of the Commissioner is REVERSED and this case is remanded for further proceedings.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s
disability determinations: “The court shall have power to enter . . . a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” The court must affirm the Commissioner’s decision if it is
based on proper legal standards and the findings are supported by substantial evidence in the
record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation
omitted). The court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where
the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its]
judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the
court “must uphold the ALJ’s decision where the evidence is susceptible to more than one
rational interpretation”). “[A] reviewing court must consider the entire record as a whole and
may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I.
Plaintiff’s Application
Plaintiff alleges disability based on back injury, nerve pain, chronic pain, mobility issues,
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high blood pressure, depression, and anxiety. Tr. 55-56. 2 At the time of Plaintiff’s amended
alleged onset date, he was 56 years old. Tr. 48.
Plaintiff protectively applied for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on June 3, 2019, alleging an initial onset date of December 31, 2004
(DIB) and March 15, 2017 (SSI). Tr. 166, 169, 171. His application was denied initially on
October 23, 2019, and on reconsideration on December 23, 2020. Tr. 92, 97, 102, 105. Plaintiff
subsequently requested a hearing, which was held on September 10, 2021, before Administrative
Law Judge (“ALJ”) John Michaelsen. Tr. 33. Plaintiff appeared and testified at the hearing,
represented by counsel. Tr. 3-47. With the assistance of counsel, Plaintiff amended his alleged
onset date to June 2, 2019, and withdrew his DIB claim. Tr. 38. On October 12, 2021, the ALJ
issued a decision dismissing Plaintiff’s DIB claim and denying Plaintiff’s SSI claim. Tr. 20-21,
28. Plaintiff requested Appeals Council review, which was denied on November 15, 2022. Tr. 1.
Plaintiff then sought review before this Court. 3
II.
Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected . . . to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At
2
Citations to “Tr.” are to the Administrative Record. See ECF 7.
3
The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C.
§ 636. ECF 14.
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step one, the Commissioner determines whether a claimant is engaged in “substantial gainful
activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),
416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the
claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at
141. At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related
activities that the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n.5.
Finally, at step five, the Commissioner must establish that the claimant can perform other
work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§
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404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
III.
The ALJ’s Decision
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since June 3, 2019, the alleged onset date. Tr. 23.
At step two, the ALJ determined that Plaintiff has the following medically determinable
impairments: “hypertension, obesity, degenerative disc disease, [and] sleep apnea.” Id. However,
the ALJ found Plaintiff did not have an impairment or combination of impairments that
“significantly limited (or is expected to significantly limit) the ability to perform basic work
activities[.]” Id.; 20 C.F.R. § 404.1520(c). Thus, the ALJ found that Plaintiff does not have a
“severe” impairment or combination of impairments and was therefore not disabled. Tr. 23-27;
20 C.F.R. § 404.1520(c).
Having found Plaintiff not disabled at step two, the ALJ denied Plaintiff’s claim and did
not proceed to the remaining steps of the sequential evaluation. 20 C.F.R. § 404.1520(a)(4) (“[i]f
the [Agency] can find that [the claimant is] disabled or not disabled at a step, the [Agency]
make[s its] determination or decision and . . . do[es] not go on to the next step”).
DISCUSSION
Plaintiff challenges the ALJ’s decision to stop the analysis at step two based on finding
Plaintiff’s obesity and degenerative disc disease “not severe.” Pl.’s Br. 4-6. Plaintiff argues that
the ALJ’s decision is not supported by substantial evidence in the record. Id. This Court agrees.
I.
Step Two Standards
At step two, the ALJ determines “whether the claimant had severe impairments during
the period for which he seeks disability benefits.” Glanden v. Kijakazi, 86 F.4th 838, 843 (9th
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Cir. 2023) (citing 20 C.F.R. § 404.1520(a)(4)(ii)). An impairment is severe “if it ‘significantly
limits’ an individual’s ‘ability to do basic work activities.’” Id. (citing 20 C.F.R. § 404.1520(c)).
The step-two severity analysis is a “threshold showing,” Yuckert, 482 U.S. at 147, that serves to
“identify[] at an early stage those claimants whose medical impairments are so slight that it is
unlikely they would be found to be disabled even if their age, education, and experience were
taken into account[.]” Id. at 153. In evaluating whether the claimant’s impairments are severe,
“the ALJ must consider the combined effect of all of the claimant’s impairments on her ability to
function, without regard to whether each alone was sufficiently severe.” Smolen v. Chater, 80
F.3d 1273, 1290 (9th Cir. 1996) (citations omitted).
To deny a claim at step two, an ALJ must provide “substantial evidence to find that the
medical evidence clearly established that [the claimant] did not have a medically severe
impairment or combination of impairments.” Glanden, 86 F.4th at 844 (citing Webb v. Barnhart,
433 F.3d 683, 687 (9th Cir. 2005)). Id. at 844. Step two is “a de minimus requirement that
screens out only frivolous claims,” id. at 843; thus, “properly denying a claim at step two
requires an unambiguous record showing only minimal limitations.” Id. at 844. The Ninth Circuit
has emphasized that “[a]n ALJ may find an impairment or combination of impairments ‘not
severe’ at step two only if the evidence establishes a slight abnormality that has no more than a
minimal effect on an individual’s ability to work.” Id. (simplified); accord SSR 85-28
(explaining that ALJs must apply step two using “great care” by proceeding to step three if a
clear determination cannot be made).
In addition, the ALJ is “required to consider the claimant’s subjective symptoms, such as
pain or fatigue, in determining severity.” Smolen, 80 F.3d at 1290. The clear and convincing
evidence standard, which is the most demanding required in Social Security cases, applies to the
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ALJ’s review of a Plaintiff’s symptom testimony at step two. Glanden, 86 F.4th at 846. Thus, an
“ALJ can reject the claimant’s testimony about the severity of h[is] symptoms only by offering
specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1284. “While the ALJ
must consider the level of consistency between symptom testimony and the medical evidence,
not all inconsistencies are ‘sufficient to doom [a] claim as groundless under the de minimis
standard of step two.’” Glanden, 86 F.4th at 846 (quoting Webb, 433 F.3d at 688).
II.
Analysis
There is no dispute that Plaintiff suffers from the medically determinable impairments of
obesity and degenerative disc disease, Tr. 23, or that Plaintiff reported difficulty with standing
for more than a few minutes, walking very far, lifting more than five pounds, using the
bathroom, and tying his shoes. Tr. 39, 42, 43, 45. Plaintiff also reported shortness of breath on
exertion (also known as “dyspnea”), very limited mobility, and intense back pain. Tr. 25, 42, 45.
In addition, two state medical evaluators found that Plaintiff’s obesity and degenerative
disc disease were both “severe” impairments based on their review of medical records that were
available at the time of their assessment. Tr. 59, Tr. 86. And Plaintiff’s treating physician stated
that Plaintiff could perform only sedentary work due to “chronic low back pain, fatigue, and
general weakness.” Tr. 882.
Although the ALJ found that Plaintiff’s “impairments could reasonably be expected to
produce the alleged symptoms,” Tr. 24, he also found that “[Plaintiff]’s statements concerning
the intensity, persistence, and limiting effects of these symptoms are not entirely consistent [with
the medical evidence].” Id. He therefore concluded that Plaintiff’s impairments were not severe.
As discussed below, this conclusion was not supported by substantial evidence with respect to
Plaintiff’s obesity or his degenerative disc disease—much less a combination of the two.
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A.
Obesity
Regarding Plaintiff’s obesity, the ALJ found that Plaintiff’s reports of “shortness of
breath on exertion” were inconsistent with his medical examinations that noted “normal”
breathing sounds throughout the relevant period. Tr. 25 (citing Tr. 300, 304, 371, 374, 378, 745,
752, 758, 764, 771, and 876-77). On January 29, 2019, Plaintiff’s medical notes recorded his
vital signs and noted that his “[b]reath sounds normal. He has no wheezes. He has no rales.” Tr.
304. However, there is no indication that Plaintiff was exerting himself during the exam, and it is
reasonable to infer that Plaintiff was sedentary when the provider was taking his vitals and
during the exam. Thus, the fact that Plaintiff’s breath sounded “normal” during an exam in
January 2019 does not constitute a “clear and convincing reason[] for rejecting [Plaintiff]’s
symptom testimony.” See Glanden, 86 F.4th at 846. In fact, during the same examination on
January 29, 2019—and on the same page that notes Plaintiff’s “normal” breath—the provider
states under cardiovascular symptoms, “Positive for chest pain and dyspnea on exertion.” Id. The
ALJ cites identical language noting Plaintiff’s “normal” breath from other medical exams in
2019, 2020, 2021, but again, that evidence is not probative as to whether Plaintiff’s obesity
caused him shortness of breath on exertion. Furthermore, just as Plaintiff was positive for
dyspnea on exertion in January 2019 despite his “normal” breathing during the exam, see Tr.
304, Plaintiff also had “[i]ncreased dyspnea” in November 2019, Tr. 776, and was “[p]ositive for
shortness of breath” in September 2020, Tr. 757—despite observations from both exams cited by
the ALJ that his “[b]reath sounds normal.” Tr. 745, 758.
The ALJ also found Plaintiff’s obesity “not severe” because Plaintiff “was able to go to
the gym.” Tr. 25. Again, the ALJ misread the record. The ALJ cited a medical record from
October 19, 2019 noting that Plaintiff was going to the “gym 3 times a week,” Tr. 436, but that
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appeared in a section entitled, “History of Present Illness,” and is from a medical exam on July 7,
2015. Id. The ALJ accurately cites a medical record from January 2019 that addresses Plaintiff’s
weight gain and makes the comment, “[b]ack to the gym,” Tr. 303, but the fact that his doctor
encouraged him to go to the gym does not undermine Plaintiff’s reports of dyspnea, weakness,
fatigue, limited mobility, or back pain. See Polanco v. Astrue, CV 08-5550 PJW, 2011 WL
128790, at *3 (C.D. Cal. Jan. 13, 2011) (“the fact that her doctor wanted her to exercise and lose
weight—and believed that she could—does not undermine Plaintiff’s testimony that she was in
too much pain to work”). A medical record dated March 9, 2020, notes that Plaintiff was
“working out 2 hours per day doing cardio,” Tr. 790, but that is the only indication of such
activity, and the ALJ did not cite that evidence in assessing the severity of Plaintiff’s obesity;
moreover, “not all inconsistencies are ‘sufficient to doom [a] claim as groundless under the de
minimis standard of step two.’” Glanden, 86 F.4th at 846 (citing Webb, 433 F.3d at 688 (finding
“no inconsistency . . . sufficient to doom his claim as groundless at step two” where “the doctors’
reports and tests usually correspond with the afflictions [the claimant] perceived” and where the
case did not involve a “total absence of objective evidence of severe medical impairment”)).
The ALJ also contends that Plaintiff’s “gait and balance were normal during the relevant
period,” Tr. 25, but that is not clearly inconsistent with Plaintiff’s obesity-related symptoms.
Even if it were, that evidence is insufficient to show that Plaintiff’s obesity had “no more than a
minimal effect on an [his] ability to work”—even when combined with evidence of Plaintiff
working out in March 2020. This is particularly true considering the opinion of two state
evaluators who found that Plaintiff’s obesity was a “severe” medical impairment in 2019, Tr. 59,
and again in 2020, Tr. 86, and the 2021 assessment of Plaintiff’s treating physician, Dr.
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Schumilas, in which he opined that Plaintiff had the ability to perform only sedentary work due
to his lower back pain, morbid obesity, sleep apnea, and hypertestosteronemia. Tr. 882-884.
In sum, “[b]ecause the record did not clearly establish [Plaintiff’s obesity as] a slight
impairment with no more than a minimal effect on [his] ability to work, the ALJ should not have
denied the claim at step two.” See Glanden, 86 F.4 at 848 (citing Webb, 433 F.3d at 686).
B.
Degenerative Disc Disease
The ALJ also erred in stopping the analysis at step two regarding Plaintiff’s degenerative
disc disease. The ALJ acknowledged imaging from March 2017 that “redemonstrated multilevel
degenerative change, with moderate to severe left neural foraminal stenosis at L3-L4 and
moderate to severe bilateral neural foraminal stenosis at L4-L5 with moderate spinal canal
stenosis at L4-L4.” Tr. 25 (citing Tr. 496). The ALJ also noted that “imaging shows degenerative
changes.” Id. Also, in the August 2021 assessment that Dr. Schumilas prepared for Plaintiff’s
SSI hearing, Dr. Schumilas noted Plaintiff’s “chronic low back pain,” his ability to perform only
sedentary work, and his need to sit and stand at will to “help minimize pain from arthritic lumbar
spine.” Tr. 882-883. The ALJ found the opinion of Dr. Schumilas “not persuasive” because the
ALJ could “find no explanation or support for these findings based on Dr. Schumilas’ treatment
records[.]” Id. Plaintiff, however, presented with back pain in July 2020, and Dr. Schumilas
noted his “history of chronic mechanical back pain that causes acute flareups like this every 4
months or so. The pain is sharp and constant.” Tr. 811. Plaintiff presented with back pain again
in July 2021, and Dr. Schumilas once again noted his “acute flareup of chronic back pain that he
has had for about 20 years” and noted the following treatment: “[Plaintiff] will use prednisone
for an acute flare. He will have the bariatric surgery and lose weight in order to release the strain
on his back.” Tr. 879. Although the ALJ generally acknowledged that Plaintiff had been cleared
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for bariatric surgery in May 2021, see Tr. 25, he did not discuss the surgery in assessing
Plaintiff’s degenerative disc disease or acknowledge that the surgery was intended to relieve
Plaintiff’s back pain.
Despite the objective medical evidence of Plaintiff’s degenerative disc disease, morbid
obesity, and chronic back pain, the ALJ found that his “medical exams do not establish that his
[degenerative disc disease] more than minimally impacted [Plaintiff]’s ability to perform basic
work activities[.]” Tr. 25. The ALJ noted that Plaintiff was treated with prednisone as needed,
id., but that evidence confirms that Plaintiff had intermittent flareups of back pain that were
significant enough to require a prescription steroid, and it overlooks that Plaintiff reported that
the prednisone was only 80% effective in treating his pain. Tr. 811. The ALJ cited evidence that
Plaintiff had a “normal gait and station” and his “lumbosacral spine was nontender with a normal
range of motion” on May 14, 2021, Tr. 869, but the purpose of that visit was to “[f]ollow up on
back pain” and treat Plaintiff’s flareups, Tr. 868, and Dr. Schumilas diagnosed Plaintiff with
“mechanical low back pain.” Tr. 870. The ALJ also notes that Dr. Schumilas found Plaintiff to
have a “normal gait and station” and a “normal range of motion of the spine” in July 2021, Tr.
877, but Dr. Schumilas also noted that Plaintiff’s “lumbosacral spine is tender at L4-5” and
treated his “acute flareup of chronic back pain” during that exam. Tr. 876. Moreover, the state
medical examiner found Plaintiff’s degenerative disc disease “severe” based on her review of his
records through September 24, 2019, Tr. 55-61, and the second state examiner also found his
degenerative disc disease “severe” based his review of Plaintiff’s records through December 1,
2020. Tr. 79-89. Based on the opinions of the state medical examiners, Dr. Schumilas, Plaintiff’s
subjective testimony, and the objective medical evidence, this Court finds that the ALJ’s finding
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that Plaintiff’s degenerative disc disease was “not severe” was not supported by substantial
evidence.
In sum, Plaintiff “presented sufficient evidence to overcome the low bar of showing that
his claim was not groundless.” Glanden, 86 F.4th at 848. The ALJ therefore erred in stopping at
step two. See id. Because the ALJ stopped at step two, further proceedings are warranted. Upon
remand, the ALJ must continue with the sequential analysis and determine whether Plaintiff is
disabled. See Kevin L. K. v. Comm’r of Soc. Sec. Administration, 6:21-CV-01699-JR, 2022 WL
16758208, at *1 (D. Or. Nov. 8, 2022) (finding that the ALJ “committed harmful legal error in
concluding that [the] plaintiff’s degenerative disc disease was not severe” at step two and
therefore remanding and directing the ALJ to take the necessary steps to complete the sequential
analysis). 4
CONCLUSION
Based on the foregoing, the Court REVERSES the Commissioner’s decision and
REMANDS this case to the agency for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED February 5, 2024.
___________________________
ANDREW HALLMAN
United States Magistrate Judge
4
This Court expresses no view as to whether Plaintiff is disabled; rather, this Court finds only
that the ALJ’s denial at step two was premature.
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