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Angela Shankles v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 13, 2010

ANGELA SHANKLES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's request for Supplemental Security Income under Title XVI of the Social Security Act.*fn1 Plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) determining that there are jobs in significant numbers in the national economy that plaintiff can perform despite plaintiff's mental impairments; (2) determining that plaintiff was able to perform jobs in the national economy without first consulting a Vocational Expert ("VE"); (3) failing to properly assess plaintiff's non-mental impairments at step two of the required five-step analysis; and (4) failing to properly document his findings regarding plaintiff's mental impairments in accordance with 20 C.F.R. § 416.920a and the Commissioner's Hearings, Appeals, and Litigation Manual ("HALLEX") I-2-8-25C(2). (Pl.'s Mot. for Summ. J. ("Pl.'s Mot."), Dkt. No. 17.) The Commissioner filed a cross-motion for summary judgment. (Def.'s Opp'n & Cross-Motion for Summ. J., Dkt. No. 19.) Plaintiff filed a reply to defendant's motion. (Pl.'s Reply to Def.'s Opp'n & Cross-Motion for Summ. J. ("Pl.'s Reply"), Dkt.No. 21.)

For the reasons that follow, the court denies plaintiff's motion for summary judgment in part, grants the Commissioner's cross-motion for summary judgment in part, and remands this case to the agency for further proceedings consistent with this order.

I. BACKGROUND

A. Procedural Background

On January 3, 2006, plaintiff filed an application for Supplemental Security Income ("SSI"). (Administrative Transcript ("AT") 31.) Plaintiff alleged a disability onset date of December 1, 2000. (AT 44, 46.) Following an initial denial of her claims, plaintiff filed a Request for Reconsideration that was subsequently denied on February 7, 2006. (AT 12, 36, 37.) Plaintiff timely filed a request for a hearing, and the ALJ conducted a hearing on October 29, 2008. (AT 35, 135.) At the hearing, the ALJ heard testimony only from plaintiff. (AT 40, 135.) The ALJ also considered written statements submitted by plaintiff's sister, Teddi Hamilton, and plaintiff's husband, William Shankles. (AT 17, 166-69.)

In a decision dated February 2, 2009, the ALJ denied plaintiff's application, finding that there were a significant number of jobs in the national economy that plaintiff could perform despite some limitations in her residual functional capacity.*fn2 (AT 20.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 17, 2009. (AT 2-5.) Plaintiff seeks judicial review of the denial of her application.

B. Summary of Relevant Medical History and Evidence At the time of her hearing before the ALJ, plaintiff was 39-years-old and had not worked since approximately 2003. (AT 31, 62.) Plaintiff completed the ninth grade of high school and received her diploma through home schooling in approximately 2002. (AT 139-40.) Plaintiff had worked doing yard-duty and bus-duty for her daughter's school, but quit amidst an incident involving her daughter's classmate. (AT 143-46.) Prior to that time, plaintiff worked as a dietary aide and for a Burger King restaurant. (AT 146.)

Plaintiff first sought medical treatment relative to her condition herein on August 17, 2004, at Midtown Medical Center ("MMC"). (AT 130.) Plaintiff complained of a right knee fracture after an auto accident. (Id.) An x-ray revealed that there was no fracture. (AT 122.) From August 24, 2004, through December 29, 2004, plaintiff was prescribed Vicodin,*fn3 Ultram,*fn4 and Soma.*fn5 (AT 121, 126, 127, 128, 196-98, 270.)

Plaintiff returned to MMC on June 1, 2005, and was prescribed Lexapro*fn6 and Seroquel.*fn7 (AT 125.) In January 2006, plaintiff presented to MMC for a physical examination and complained of depression. (AT 124.) Plaintiff was prescribed Zoloft*fn8 as a replacement for Lexapro. (Id.)

Plaintiff presented to Timothy Canty, M.D., for a psychiatric evaluation on February 2, 2006. (AT 109.) Plaintiff's primary complaint was that she was "not so good with people," and she indicated that her mood had improved with medications. (Id.) Plaintiff reported that she was taking Seroquel and Zoloft. (Id.) Plaintiff reported that she had not sought mental-health treatment "but was placed on a 72-hour hold after she complained of suicidal ideation while in jail." (Id.)

Dr. Canty diagnosed plaintiff's DSM-IV characteristics as follows:

Axis I: Methamphetamine dependence in remission per claimant, Anxiety disorder NOS. Axis II: None. Axis III: Deferred. Axis IV: Mild. Axis V: 65/70.*fn9 (AT 111.)

Dr. Canty determined that plaintiff had the cognitive ability to manage money, but that she "would not do well in a public or overly stressful job." (AT 112.) Dr. Canty stated that plaintiff would not have difficulty in "most nonpublic, simple jobs." (Id.) Lastly, Dr. Canty reported that plaintiff's anxiety would not interfere with attending work that she was highly motivated to perform, but that she would probably do best with a limited number of co-workers and supervisors. (Id.)

On February 24, 2006, plaintiff returned to MMC complaining of left arm pain and headaches. (AT 239.) The chart note indicated that plaintiff's depression was "controlled on Zoloft." (Id.)

During March and April of 2006, plaintiff continued to be seen at MMC for headaches and depression. (AT 281, 283.) Plaintiff was prescribed Imitrex,*fn10 but on May 17, 2006, she complained that the medication was not helping with her headaches. (AT 279, 283.)

Plaintiff also complained that she had low back pain since 2004 when she underwent a procedure to treat kidney stones. (AT 279.) On July 25, 2006, plaintiff was prescribed Topomax*fn11 for her headaches, and on August 25, 2006, plaintiff reported that Topomax helped. (AT 233, 234.)

During the remainder of 2006 and early 2007, plaintiff continued to visit MMC and was prescribed medication for migraines, anxiety, and depression. (See AT 228-32.) On February 23, 2009, plaintiff complained of chest pain and was diagnosed with gastroesophageal reflux disease ("GERD"). (AT 227.) Plaintiff's GERD symptoms were treated with Prevacid,*fn12 and she was prescribed Xanax.*fn13 (Id.)

On May 17, 2007, plaintiff presented to Mercy San Juan Hospital and was diagnosed with acute lumbar strain. (AT 192.) On May 29, 2007, plaintiff returned to MMC complaining of back pain and was prescribed Flexeril.*fn14 (AT 224.)

Between June 28, 2007, and July 3, 2008, plaintiff continued to be treated at MMC on an approximately monthly basis for a number of health reasons including anxiety, depression, headaches, low back pain, and cough. (AT 210-13, 217-23.) During this time period, plaintiff was treated with the following medications: Zoloft, Xanax, Seroquel, Ultram, Flexeril, and Topomax. (Id.)

On July 12, 2008, plaintiff presented to Mercy San Juan Hospital where she was diagnosed with colitis. (AT 195.) Plaintiff followed up regarding her colitis symptoms at MMC on July 16, 2008, and July 24, 2008. (AT 208, 209.) On August 4, 2008, plaintiff presented to MMC complaining of right side back pain and left side "belly pain." (AT 206.) Plaintiff's corresponding chart note reported colitis, abdominal pain which required a colonoscopy, GERD which was treated with Prilosec,*fn15 constipation, anxiety which was treated with Xanax, depression which was treated with Zoloft, headaches which were treated with Topomax, and low back pain which was treated with Flexeril and Ultram. (Id.)

On August 28, 2008, an ultrasound of plaintiff's abdominal region identified a calculus*fn16 measuring 5.0 x 2.3 mm in plaintiff's left kidney. (AT 252.) The ultrasound also revealed that plaintiff's "pancreas is echogenic consistent with atrophy." (Id.)

A radiological report dated September 2, 2008, revealed that plaintiff had "two adjacent calcifications projecting over the inferior pole left kidney measuring 3 and 4 mm." (Id.) From September 2, 2008, to October 1, 2008, plaintiff continued treatment at MMC and complained of left side stomach pain, nausea, vomiting, sharp pain in her lower back, and anxiety. (AT 202-04.)

On October 7, 2008, plaintiff presented to Mercy San Juan Hospital. (AT 194.)

A CT scan of her abdomen and pelvis revealed calcified granuloma at plaintiff's right lateral lung base and multiple old calyceal stones in her left kidney. (Id.) The report indicated that plaintiff was at risk for episodes of left sided renal colic and that the colitis that had been present on a scan from the previous July had been resolved. (Id.)

On October 8, 2008, plaintiff presented to MMC complaining of blood in her urine, and kidney pain. (AT 201.) During her October 28, 2008 visit to MMC, plaintiff also complained of lower back pain and left side stomach pain. (AT 200.) The diagnosis and treatment plan taken from the chart notes of these two visits are as follows: renal stones for which plaintiff was to be referred to urology; obesity which listed "lifestyle" as a treatment plan; GERD, which was treated with Prilosec; depression, which was treated with Zoloft; anxiety, which was treated with Xanax; headaches, which were treated with Topomax; chronic low back pain, which was treated with Vicodin and Flexeril; shingles, which was treated with Acyclovir;*fn17 bipolar disorder, which was treated with Seroquel; and colitis. (AT 200-01.)

Meanwhile, on October 15, 2008, plaintiff presented to John T. Hata, M.D., complaining of abdominal pain, blood in her stool, and GERD. (AT 250.) Dr. Hata reported that plaintiff suffered from chronic anxiety and that plaintiff's prescribed medications included: Prilosec, Seroquel, Zoloft, Vicodin, Xanax, Topomax, and Flexeril. (Id.) Plaintiff further complained of episodic lower back pain and shingles. (Id.) Plaintiff also stated that the onset of her heartburn was four years ago and that the problem had not resolved. (Id.) Dr. Hata reported that plaintiff was stable on Prilosec and should continue treatment with medication. (AT 251.)

On October 23, 2008, plaintiff was referred by her attorney to Michelina Regazzi, Ph.D., for a psychological evaluation. (AT 272.) With regard to her medical history, plaintiff reported that was recently told she had colitis and that she was being treated for kidney stones. (Id.) Plaintiff reported that her medications included Xanax, Prochlorperazine,*fn18 Vicodin "for the kidney stones," Flexeril, Topomax, Seroquel, Zoloft, and Prilosec. (Id.)

Plaintiff reported that she had been taking psychiatric medication on and off for years, although she had never been admitted to a psychiatric facility. (Id.) Plaintiff further reported that she had recently tried to get into counseling but there were problems with her insurance. (Id.)

With regard to her substance abuse history, plaintiff reported that she had last used "crank" over 16 years ago. (AT 273.) Dr. Regazzi noted that this was not consistent with plaintiff's 2006 psychiatric evaluation. (Id.)

With regard to her daily activities, plaintiff stated that while her husband did most of the cooking, she was able to clean the house. (AT 274.) Plaintiff stated that she was fearful of driving and that she received rides from her mother or sister. (Id.) Plaintiff further stated that her husband handled the finances but she was able to do the grocery shopping with him. (Id.)

Dr. Regazzi reported that at the start of the mental status examination plaintiff was "quite anxious," but that her anxiety dissipated within "about ten minutes." (Id.) When asked to describe her predominant mood, plaintiff responded that sometimes she became agitated and "sometimes [she was] okay." (Id.) Plaintiff reported that a lot of times she felt overwhelmed. (Id.)

With regard to plaintiff's test results, Dr. Regazzi reported that plaintiff's reading ability was low average and "equivalent to the 8th grade level," while her spelling and arithmetic scores fell within the deficient range. (AT 275.) Plaintiff's intellectual functioning was tested by her performance on the Wechsler Adult Intelligence Scale. (Id.) Plaintiff's verbal comprehension index score was 80 while her perceptual organization index score was 116. (Id.) Dr. Regazzi reported that a "discrepancy of this magnitude is uncommon and points to a relative weakness in cognitive skills." (Id.)

Dr. Regazzi diagnosed plaintiff as follows:

Axis I: Anxiety Disorder, NOS; Learning Disorder, NOS. Axis II: No Diagnosis. Axis III: Colitis, kidney stones, by report. Axis IV: None. Axis V: 58.*fn19 (AT 276.)

Based on her evaluation of plaintiff, Dr. Regazzi assessed the following capabilities and limitations solely with respect to mental factors and without consideration of any of plaintiff's reported physical limitations: while plaintiff has moderate impairments in her daily living activities, she "is capable of carrying out all personal care and daily living activities"; plaintiff is able to understand, carry out, and remember simple written or oral instructions in a workplace with few co-workers and no contact with the public; plaintiff has moderate impairment in her ability to communicate or interact with co-workers and supervisors and severe impairment in dealing with the public due to her anxiety; plaintiff has no significant impairment in her ability to attend work on a regular basis, moderate impairment in her ability to follow safety standards, and marked impairment in her ability to deal with unexpected situations that might arise in the course of a workday; plaintiff had moderate to marked impairment in her ability to maintain stable emotional functioning in the workplace and; if granted disability benefits, plaintiff is capable of managing her own funds. (Id.)

C. Summary of Relevant Hearing Testimony and Witness Statements At the administrative hearing, plaintiff testified that she was enrolled in special education while in high school and had trouble reading. (AT 140-41.) Plaintiff testified that she was able to read children's books but has trouble with comprehension when reading the newspaper. (AT 141-42.) She also testified that she does not spell very well, that she would be able to write a letter only if it contained basic words, and that she is only able to complete basic arithmetic. (AT 142-43.) Plaintiff explained that she had trouble with her memory and attributed it to her medication. (AT 147.)

Plaintiff testified that at the time of the hearing, she was prescribed Seroquel, Zoloft, Vicodin for kidney stones and a past case of shingles, Flexeril for muscle spasms, Topomax for migraines, Xanax, and Prochlorperazine for nausea. (AT 147-48.) Plaintiff attributed her nausea to "problems with my bowels" and testified that she had recent back pain. (AT 148.)

Plaintiff testified that she had been seeing a specialist due to kidney stones and her back was in constant pain. (AT 148-49.) She testified that no x-rays had been taken despite her back complaints. (AT 149.) Plaintiff testified that she had colitis. (Id.)

Plaintiff testified that despite taking medication, she experienced migraine headaches at least three to four times per week that left her unable to function on those days. (AT 149-50.) She further testified that her colitis continued to give her problems and that it affected her daily activities. (AT 150-51.)

Plaintiff also testified that she experienced severe anxiety and panic attacks. (AT 151.) She explained that these symptoms were brought on by being in a room with a lot of people and left her feeling like she was gasping for air. (Id.) Accordingly, plaintiff testified that if she did the shopping, she was only able to do it at night; that if she had anywhere to go, she was driven by her mom or her daughter because she would get panic symptoms when she drove; and that she avoided crowds and new surroundings. (AT 152.)

Plaintiff testified that she watched television and movies during the day and that while she was able to keep her bedroom neat, her children did the majority of the housework. (AT 152-53.) She explained that she had trouble watching her grandson without help from her husband because she did not feel good. (AT 153-54.) Plaintiff further testified that she believed her anxiety caused problems at her yard-duty and dietary aide jobs. (AT 154.) Plaintiff testified that although losing these positions ended up hurting her self-esteem, she "was good" at the time she was doing these respective jobs. (Id.) Finally, plaintiff testified that she had always had problems with anxiety and that she was unable to socialize with people outside of her family.(AT 154-55.)

Plaintiff's husband, William Shankles, wrote a statement indicating that during the prior seven years, plaintiff had suffered from "severe bouts of depression, social anxiety, and confidence issues" resulting in plaintiff "seldom leaving the comfort/safety of her own home." (AT 166.) Mr. Shankles further wrote that plaintiff's anxiety necessitated that he perform more of the everyday tasks and that plaintiff lacked the ability to work or deal with society. (AT 166-67.)

Plaintiff's sister, Teddi Hamilton, wrote a statement indicating that plaintiff had transformed into someone "who seldom leaves the safety of her home." (AT 168.) Ms. Hamilton further wrote that plaintiff did not drive due to anxiety and did not like to be in closed spaces. (Id.) Ms. Hamilton also stated that plaintiff was unable to be in a room with many people without becoming overwhelmed to the point of tears. (Id.) Ms. Hamilton explained that she had seen plaintiff become more physically ill in recent years to the point of being unable to hold a job. (AT 169.)

D. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff had not been disabled from January 3, 2006, through the date of the ALJ's decision. (AT 20.) At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since January 3, 2006, plaintiff's application date. (AT 14.)

At step two, the ALJ found that plaintiff suffered from the following severe impairments: panic attacks and bipolar disorder. (Id.) The ALJ determined that plaintiff's impairments resulted in "more than minimal limitations" in her ability to "perform work related physical and mental tasks." (Id.) The ALJ also found that plaintiff's headaches did not result in significant physical limitations and that plaintiff seemed to be "doing fairly well" on her medication, Topomax. (Id.) The ALJ did not address any of plaintiff's other physical impairments in the portion of his order specifically addressing step two. (Id.)

At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (Id.) The ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

Having considered all of the evidence of the entire record and testimony of record, the undersigned finds that the claimant has no exertional limitations. She can perform unskilled work, with no frequent interaction with co-workers or supervisors and no public jobs. (Id.)

At step four, the ALJ found that plaintiff was incapable of performing her past work as a dietary aide because the duties required by that position were in excess of her current RFC. (AT 19.) At step five, the ALJ concluded that although plaintiff's ability to perform work at all exertional levels had been compromised by her non-exertional limitations, these limitations had little or no effect on the occupational base of unskilled work at all exertional levels. (AT20.) Accordingly, the ALJ determined that a finding of "not disabled" was appropriate under Medical-Vocational Guidelines section 204.00. (Id.) Therefore, the ALJ determined that plaintiff had not been under a disability, as defined in the Social Security Act, from her filing date through the date of the ALJ's decision. (Id.)

II. ISSUES PRESENTED

Plaintiff contends that the ALJ committed the following errors in denying her claim. First, plaintiff argues that the ALJ erred by failing to find that plaintiff's physical limitations were severe at step two of the five-step analysis. Second, although buried in a footnote, plaintiff cursorily argues that the ALJ erred at step three of the sequential analysis by failing to properly document his findings regarding plaintiff's inability to satisfy the "B" criteria contained in the appropriate listing. Finally, plaintiff contends that the ALJ erred by determining that there were significant jobs in the national economy that plaintiff could perform despite plaintiff's mental impairments, and that the ALJ erred in making this determination without the aid of a VE.

III. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is: (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039.

Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "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." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Plaintiff bears the burden of proving she is disabled with the meaning of the Act. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999)).

IV. ANALYSIS

A. The ALJ Did Not Err at Step Two

Plaintiff argues that the ALJ erred by failing to find that plaintiff had any severe physical impairments at step two of the required analysis and, therefore, the ALJ improperly assessed plaintiff's RFC. (Pl.'s Mot. at 8.) The Commissioner argues that the ALJ did not err because the proper inquiry is whether plaintiff's impairments affect her ability to work, "not simply whether the plaintiff experiences a medical condition or abnormality." (Def.'s Opp'n & Cross-Motion for Summ. J. at 6.)

At step two, the ALJ is required to determine if plaintiff has a severe impairment. "An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)) (internal quotation marks omitted). In other words, an impairment is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521. At step two, an ALJ's decision that plaintiff lacks a medically-severe impairment or combination of impairments must be supported by clearly established medical evidence. Webb, 433 F.3d. at 687 (quoting Social Security Ruling ("SSR") 85-28*fn20 ) (internal quotation marks omitted).

Here, the ALJ found that plaintiff suffered from two severe mental impairments: panic attacks; and bipolar disorder. (AT 14.) Plaintiff argues that the ALJ erred by finding that plaintiff's headaches were not severe and by not addressing plaintiff's noted conditions of colitis, kidney stones, chronic low back pain, obesity, and GERD insofar as step two is concerned. (Pl.'s Mot. at 6.) Specifically, plaintiff argues that the October 7, 2008 abdominal CT scan, which showed evidence of "old stones" and contained a "reference to Mrs. Shankles being at risk for kidney colic," would "seem to establish a medically determinable impairment, the pain from which would at least occasionally interfere with performing work." The undersigned disagrees. After careful review, the undersigned finds that the ALJ properly addressed all of plaintiff's physical impairments, albeit, not specifically in the portion of the decision contained under the step two heading. Although the ALJ only addressed plaintiff's headaches in that express, step two discussion (AT 14), he subsequently discussed plaintiff's physical impairments and the corresponding medical evidence when assessing plaintiff's RFC. (See AT 15-19.)

Substantial evidence supports the ALJ's decision that plaintiff's non-mental impairments were not severe. With regard to plaintiff's physical impairments, in the step two analysis the ALJ wrote that the "evidence shows that the claimant's headaches do not appear to result in any significant physical limitations. The claimant was prescribed Topomax and seemed to be doing fairly well on this medication." (Id.) Evidence showing plaintiff's symptoms are controlled by medication tends to support a finding of no disability. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Plaintiff indicated on May 17, 2006, that her medication, Imitrex, was "not helping" with her migraine headaches. (AT 279.) Plaintiff's medical records indicate that her prescription was changed to Topomax on July 25, 2006. (AT 234.) The ALJ wrote that plaintiff "seemed to be doing fairly well" on Topomax and that after reviewing plaintiff's medical records, the ALJ "notes that the claimant has not been hospitalized, or to the emergency room with complaints nor has she described any side effects from her medications." (AT 14, 16.) While plaintiff's medical records list headaches as an ongoing impairment, there is no indication that the headaches were increasing in severity, that they were not properly controlled with medication, or that they impaired her ability to work. Accordingly, the ALJ pointed to substantial evidence and did not err by finding that plaintiff's headaches were not severe.

The ALJ also did not err by finding that plaintiff's other physical impairments were not "severe." While acknowledging plaintiff's "numerous physical complaints," the ALJ wrote that the "minimal clinical findings do no justify the claimant's contention that they keep her from working." (AT 18.) While the ALJ's discussion of plaintiff's other physical impairments is limited,*fn21 the ALJ pointed to sufficient evidence in the record to support the conclusion that plaintiff's physical impairments did not significantly limit plaintiff's ability to work. The ALJ found that "[f]indings have been very minimal. There is no evidence of atrophy, weakness, deformity, muscle tenderness or spasms, anatomically consistent sensation changes or reflex changes" and "claimant stated that she was sleeping better with Seroquel." (Id.)

Substantial evidence in the record supports the ALJ's conclusion. While plaintiff's medical records contain evidence of physical impairments, there is no objective evidence to support the conclusion that they were of such severity to limit her ability to work. Indeed, aside from a November 24, 2004 chart note indicating that plaintiff's knee pain prevented her from participating in walking or prolonged standing until February 1, 2005, plaintiff's medical records do not evidence that her physical impairments placed functional limitations on her ability to work. (AT 197.) Plaintiff's medical records, paired with her conservative treatment, support the ALJ's finding that plaintiff's non-mental impairments were not severe within the meaning of the Act.*fn22 Because plaintiff has failed to meet her burden of proving that her physical impairments significantly limited her ability to do basic work activities, the ALJ did not err by failing to find plaintiff's non-mental impairments as severe at step two of the analysis. See Bowen, 482 U.S. at 141 (citations and internal quotation marks omitted); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (holding that the mere existence of an impairment is insufficient proof of a disability and that plaintiff bears the burden of proving that an impairment is disabling).

Finally, plaintiff argues that the ALJ further erred by ignoring plaintiff's obesity when formulating plaintiff's RFC. (Pl.'s Mot. at 7.) When evaluating obesity in order to determine a claimant's RFC, the ALJ must consider "an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis." Burch, 400 F.3d at 683 (citations omitted). In assessing plaintiff's RFC, the ALJ must consider the limitations and restrictions imposed by all of plaintiff's impairments, even those that are not severe. Id. (quoting SSR 96-8p (1996)). Plaintiff bears the burden of proving that her obesity exacerbated her other impairments. See Burch, 400 F.3d at 682.

The ALJ did not err and properly incorporated plaintiff's obesity when assessing plaintiff's RFC. The ALJ noted that in 2008, plaintiff was diagnosed with obesity. (AT 14.) The ALJ noted that the record did not indicate that plaintiff had been diagnosed with any exertional or physical limitations resulting from her obesity (id.). See Burch, 400 F.3d at 684 (holding that the ALJ did not err in assessing plaintiff's RFC because plaintiff failed to set forth evidence, and there was no evidence in the record of functional limitations caused by plaintiff's obesity). After reviewing plaintiff's medical records, the ALJ concluded that obesity, like plaintiff's other physical impairments, did not impose exertional limitations. Plaintiff also fails to specify how her obesity exacerbates her existing impairments. Plaintiff has failed to point to evidence in the record that establishes that plaintiff's remaining ability to do sustained work activities was negatively impacted by her obesity. Accordingly, the ALJ did not err in assessing plaintiff's RFC.

B. Any Failure to Properly Follow 20 C.F.R. § 416.920a and HALLEX was Harmless Error

Buried in a footnote in her motion for summary judgment, plaintiff forwards an additional argument. (Pl.'s Mot. at 4 n.1.) She argues that the ALJ erred at step three of the sequential analysis by failing to properly document findings in his decision regarding plaintiff's inability to satisfy the "B" criteria of the applicable listings. Specifically, plaintiff asserts that the ALJ failed to document his findings to the level of specificity dictated by 20 C.F.R. § 416.920a and HALLEX I-2-8-25C(2).

In order to determine whether a claimant's mental condition meets a listed impairment, the ALJ must consider: (1) whether specified diagnostic criteria ("paragraph A" criteria) are met; and (2) whether specified functional restrictions are present ("paragraph B" criteria). Lester, 81 F.3d at 828 (citing 20 C.F.R. § 404.1520a). If the claimant's mental impairment is severe, the ALJ must determine if it meets or is equivalent in severity to a listed mental disorder. 20 C.F.R. § 416.920a(d)(2). This determination is accomplished by comparing the medical findings pertaining to the claimant's impairment "and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder." Id. The degree of functional limitation for the first three paragraph "B" criteria are rated as none, mild, moderate, marked, or extreme. 20 C.F.R. § 416.920a(c)(4). The final paragraph "B" criteria is rated as none, one or two, three, four or more. Id.

Simply put, after the ALJ determines plaintiff's paragraph "A" criteria, the ALJ reviews the medical findings and rates plaintiff's functional limitations to determine if they satisfy the "B" criteria. A plaintiff who satisfies the paragraph "A" criteria must be found disabled if his or her impairments results in two or more functional limitations found in paragraph "B." Lester, 81 F.3d at 828-29.

Although the ALJ did not specifically address which paragraph "A" criterion corresponds to plaintiff's impairments, plaintiff identifies 12.06 as the appropriate listing and does not assign any error relative to evaluation of the "A" criteria.*fn23 Regarding the "B" criteria stated in listing 12.06, plaintiff must demonstrate that she suffers from two of the four following functional restrictions to support a finding of disability: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06 B.

The ALJ did not technically rate the four "B" criteria in accordance with 20 C.F.R. § 416.920a. Instead, the ALJ stated that plaintiff's mental impairments did not result in "marked limitations in two or more areas of mental functioning" and that, therefore, plaintiff's impairments did not meet or medically equal one of the listed impairments under 20 C.F.R. Pt. 404, Subpt. P, App. 1. (AT 14.)

To the extent that the ALJ's failed to properly rate plaintiff's "B" criteria, such an error was harmless. Harmless error exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate non-disability determination. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). While the ALJ did not "rate" all four criteria in the manner required under 20 C.F.R. § 416.920a(c)(4), he did review and discuss the relevant evidence and determine that plaintiff lacked "marked" impairment in two of the four required criteria. (AT 14.) The ALJ specifically addressed three of the four criteria, writing that the "medical evidence showed that the claimant was capable of activities of daily living" and that the records "do not show the presence of . . . marked impairment in daily activities, social functioning or concentration." (AT 19.) The ALJ determined that plaintiff suffered from mental impairment which had been "incorporated into the established residual functional capacity." (Id.) As plaintiff essentially acknowledges (Pl.'s Mot. at 4, n.1), the ALJ's conclusions are supported by substantial evidence in the record.

Accordingly, the ALJ's failure to properly "rate" the four criteria was harmless.*fn24

The ALJ also did not err by failing to document his conclusions in conformity with HALLEX I-2-8-25C(2).*fn25 HALLEX is not binding on the ALJ or the court. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1072 (9th Cir. 2010) ("HALLEX does not impose judicially enforceable duties on either the ALJ or this court.").

The undersigned concludes that the ALJ sufficiently discussed why plaintiff's mental impairments failed to meet the paragraph "B" criteria and any error in this regard was harmless. Moreover, HALLEX is not binding on the ALJ or this court. Accordingly, the undersigned finds that the ALJ did not err at step three.

C. The ALJ Erred by Failing to Utilize a VE

Finally, plaintiff contends that the ALJ erred by finding that plaintiff was able to perform jobs in the national economy despite plaintiff's mental impairments. Plaintiff argues that her marked impairment in the ability to deal with unexpected situations that might arise in the course of a workday supports a finding of disability.*fn26 (Pl.'s Mot. at 5.) Plaintiff further argues that the ALJ erred by failing to utilize a VE when making this determination. (Id.) The Commissioner argues that despite medical evidence suggesting that plaintiff "should have no frequent interaction with co-workers, supervisors, or the public," there are a significant number of jobs which do not require such interaction and therefore, the ALJ did not err. (Def.'s Opp'n & Cross-Motion for Summ. J. at 8.) He further argues that the ALJ was not required to consult a VE here because SSR 85-15 makes clear that there are jobs available that fit plaintiff's limitations. (Id. at 10.)

At step five, the burden shifts to the Commissioner to show that specific jobs exist in substantial numbers in the national economy that plaintiff can perform despite his or her identified limitations. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). This burden is satisfied by either "(1) applying the Medical-Vocational Guidelines ("grids") in appropriate circumstances or (2) taking the testimony of a vocational expert."*fn27 Id. If the Commissioner satisfies this burden, a plaintiff is not disabled and is not entitled to disability benefits. Lounsburry, 468 F.3d at 1114. If the Commissioner cannot meet this burden, the plaintiff is "disabled" and entitled to disability benefits. Id.

In this case, plaintiff's mental health impairments, consisting of panic attacks and bipolar disorder, are non-exertional impairments. Non-exertional limitations are those that do not directly affect a claimant's strength, and include "mental, sensory, postural, manipulative, or environmental (e.g., inability to tolerate dust or fumes) limitations." Burkhart v. Bowen, 856 F.2d 1335, 1340-41 (9th Cir. 1988) (citations and internal quotation marks omitted). Where a claimant suffers from non-exertional limitations, such as plaintiff here, the use of a VE is not mandatory unless the claimant's impairments result in significant and "sufficiently severe" non-exertional limitations. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).

The proper inquiry is whether a claimant's non-exertional limitations are "at a sufficient level of severity such as to make the grids inapplicable to the particular case," id., i.e., whether the claimant has an impairment that limits his or her ability to work without directly affecting his or her strength. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993). Such "non-exertional impairments, if sufficiently severe, may limit the claimant's functional capacities in ways not contemplated by the guidelines. In such a case the guidelines would be inapplicable." Id. (citing Desrosiers v. Sec'y. of Health and Human Servs., 846 F.2d 573, 577 (9th Cir. 1988)); see also Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988) (holding that where the plaintiff's non-exertional limitations are by themselves enough to limit his or her range of work, the testimony of a VE is necessary to identify specific jobs within the plaintiff's abilities) (citing Burkhart, 856 F.2d at 1340).

Here, the ALJ found that plaintiff's non-exertional limitations had little or no effect on the occupational base of unskilled work at all exertional levels. However, this conclusion did not properly resolve whether plaintiff's mental impairments were of sufficient severity to impair her ability to work irrespective of any physical limitations.

As discussed above, the undersigned concludes that the ALJ properly found at step two that plaintiff's physical impairments were not severe. Because plaintiff's severe impairments are non-exertional, SSR 85-15 provides the proper framework for determining whether a mental impairment is of sufficient severity to impair plaintiff's ability to work. "SSR 85-15 provides guidance only for cases in which the claimant asserts solely non-exertional impairments." Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995) (internal quotation marks omitted). "Mental impairments are generally considered to be non-exertional." Id. (quoting SSR 85-15 at 545) (internal quotation marks omitted).

SSR 85-15 provides in relevant part:

The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, co-workers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.

Where there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled work. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demands of such jobs on a sustained basis.

SSR 85-15, 1985 WL 56857, at *4 (emphasis added). Therefore, SSR 85-15 requires that all three basic mental demands be met even in jobs where plaintiff deals primarily with objects as opposed to data or people. A finding that plaintiff lacked one of the these three basic mental demands compels a finding that the ALJ erred by failing to utilize a VE. See Cox v. Astrue, No. C10-5021RBL, 2010 WL 3120593, at *11 (W.D. Wash. July 9, 2010) (unpublished) (stating that where plaintiff lacks one of the three basic mental demands required under SSR 85-15, the grids do not completely and accurately represent plaintiff's limitations and testimony from a vocational expert is required); Stark v. Astrue, No. C 07-6465 MHP, 2009 WL 2566723, at *8 (N.D. Cal. Aug. 18, 2009) (unpublished) (concluding that plaintiff's inability to respond to supervision as required by SSR 85-15 severely limited plaintiff's potential occupational base thereby requiring the use of a VE).

The undersigned concludes that because the record supports that plaintiff potentially lacks one of the basic mental demands required for an unskilled occupational base, the ALJ erred by relying solely on the grids. Dr. Regazzi's findings support the conclusion that plaintiff lacks the ability to perform a basic work-related activity: the ability to deal with changes in routine work setting. (AT 276.) Dr. Regazzi determined that plaintiff had "marked impairment" in her ability to deal with unexpected situations that might arise in the course of a workday.*fn28 (Id.)

Discussing Dr. Regazzi's findings, the ALJ found "that Dr. Regazzi [sic] opinion is found to be reasonably well supported by medical findings and not inconsistent with the overall evidence in file." (AT 17.) The ALJ further stated: "Dr. Regazzi reported that the claimant's mental impairment is moderate and is consistent with the undersigned [sic] residual functional capacity except unexpected changes in work environment. However, there are number of jobs that do not involve changes in work routine." (Id.) The ALJ noted that Dr. Regazzi reported "marked limitations" in this area, writing that "[n]onetheless, there are many jobs that do not involve changes in work routine." (AT 18.) Therefore, it appears that while the ALJ agreed with Dr. Regazzi's opinion that a "marked" limitation would substantially impair plaintiff's ability to deal with unexpected changes in work environment or routine, the ALJ found that this was insufficient for a finding of disability because there were other jobs available that do not implicate plaintiff's limitations.

Because a "marked limitation" in the ability to deal with changes in routine work setting would leave plaintiff unable to meet one of the three basic mental requirements of unskilled work, thereby severely limiting plaintiff's potential occupational base, the testimony of a VE was necessary to identify specific jobs within plaintiff's abilities. Accordingly, the ALJ erred by failing to utilize a VE, and the undersigned will remand this matter for further proceedings.

Plaintiff argues that because plaintiff's mental impairments "impose restrictions on basic work-related mental functions" remand is not necessary and this court should order that benefits be paid. (Pl.'s Mot. at 8.) The decision of whether to remand for further proceedings or simply to award benefits is within the court's discretion. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Generally, the court should direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings. Varney v. Sec'y of Health and Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). The undersigned finds that the ALJ's reliance on the grids was improper and that the ALJ was required to consult a VE. Because a VE must testify about whether there are jobs that plaintiff may perform despite a potentially severe limitation in her ability to deal with changes in routine work setting, the undersigned concludes that remand is appropriate. Although the court understands the importance of expediting disability claims, Varney, 859 F.2d at 1401, remanding this case for further administrative proceedings will serve a useful purpose in the resolution of this case. On remand, the ALJ must determine whether plaintiff's mental impairments allow her to meet the basic work-related activities required under SSR 85-15.*fn29 The ALJ must also take the testimony of a VE to determine whether there are jobs in the national economy that plaintiff is able to perform despite her mental limitations.

V. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 17) is granted in part and denied in part;

2. Defendant's cross-motion for summary judgment (Dkt. No. 19) is granted in part and denied in part; and

3. This case is remanded to the ALJ for further proceedings consistent with this order pursuant to 42 U.S.C. § 405(g), sentence four. The Clerk of Court is directed to enter a separate judgment herein, as provided for under Rules 58 and 79(a) of the Federal Rules of Civil Procedure. See Shalala v. Schaefer, 509 U.S. 292, 296-97 (1993).


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