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Blake-Norman v. Colvin

United States District Court, C.D. California

November 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Angela Blake-Norman, Plaintiff: Judith S Leland, LEAD ATTORNEY, Judith S Leland Law Offices, Downey, CA.

For Carolyn W. Colvin, Commissioner of Social Security, Defendant: Jennifer A Kenney, LEAD ATTORNEY, Social Security Administration, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.


JEAN ROSENBLUTH, United States Magistrate Judge.


Plaintiff seeks review of the Commissioner's final decision denying her application for disability insurance benefits (" DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed June 26, 2014, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is reversed and this action is remanded for further proceedings.


On May 28, 2009, Plaintiff filed an application for DIB, alleging that she had been disabled since January 1, 2008, because of the following impairments: " [h]ard of hearing, arthritis, shoulder, breathing problems, depression." (AR 135-36, 150.) She later added allegations of worsening hearing loss, fibromyalgia, osteoporosis, and " severe" shoulder pain. (AR 187.) After Plaintiff's application was denied, she requested a hearing before an Administrative Law Judge. (AR 94.) A hearing was held on January 6, 2011, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 50-81.) On July 15, 2011, the ALJ issued a written decision finding Plaintiff not disabled. (AR 28-49.)

Plaintiff thereafter requested review of the ALJ's decision and submitted additional medical evidence. (AR 4, 26, 206-10, 757-877.) Meanwhile, on December 30, 2011, Plaintiff filed a renewed application for benefits and was found to have been disabled since December 30, 2011. (See AR 2.) On July 19, 2013, the Appeals Council denied review of the July 15, 2011 decision. (AR 1.) The council specified that neither " the additional evidence" nor the fact that Plaintiff was " found to be under a disability beginning December 30, 2011, " warranted any change in the decision. (AR 2.) This action followed.


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court " must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the evidence as a whole can reasonably support either affirming or reversing, the reviewing court " may not substitute its judgment" for the Commissioner's. Id. at 720-21.


People are " disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process

An ALJ follows a five-step sequential evaluation process to assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a " severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 404.1520(a)(4)(ii). If the claimant has a " severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (" Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii).

If the claimant's impairment or combination of impairments does not meet or equal one in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity (" RFC")[1] to perform her past work; if so, she is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2008, the alleged onset date. (AR 33.) At step two, he concluded that Plaintiff had severe impairments of " right cubital tunnel syndrome, status post right cubital tunnel release, " " status post right rotator cuff repair, " " status post right ulnar nerve decompression, " " right upper extremity entrapment neuropathy, " " status post left rotator cuff repair, " " bi-sensorineural hearing loss, " and fibromyalgia. (Id.) He found that Plaintiff's depression was not severe. (AR 33-36.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing, including those in sections 1.00 (musculoskeletal impairments), 2.00 (hearing impairments), 11.00 (neurological impairments), and 14.00 (immune system impairments). (AR 36-37.) At step four, the ALJ found that Plaintiff had the RFC to perform light work with additional limitations:

The claimant cannot climb ladders, ropes or scaffolds, but she can occasionally climb ramps or stairs. The claimant can occasionally balance, stoop, kneel, crouch or crawl. The claimant can occasionally push, pull, lift or reach overhead with the upper extremities, bilaterally. The claimant can perform work that does not require concentrated exposure to extreme cold or extreme vibration, or any exposure to hazardous machinery, unprotected heights or other high risk, hazardous or unsafe conditions. The claimant cannot perform work requiring fine hearing.

(AR 37.) Based on the VE's testimony, the ALJ concluded that although Plaintiff could not perform her past work as a school secretary, she had transferable skills that would enable her to perform jobs that existed in significant numbers in the national economy. (AR 42.) The ALJ therefore concluded that Plaintiff was not disabled. (AR 43.)


Plaintiff contends that the ALJ erred in failing to find that Plaintiff's hearing loss met Listing 2.10, rejecting the opinions of two treating physicians that Plaintiff was disabled by chronic pain and other ailments, finding Plaintiff's depression to be nonsevere, and evaluating Plaintiff's credibility and subjective symptoms. Plaintiff further contends that the Appeals Council erred in failing to consider additional evidence from treating physician Ayal Willner concerning Plaintiff's hearing loss. (J. Stip. at 3.) For efficiency and other reasons, the Court addresses Plaintiff's contentions in an order different from that in the Joint Stipulation.

A. The ALJ Erred in Finding Plaintiff's Depression Not to Be Severe, and Remand Is Necessary

Plaintiff contends that the ALJ erred in finding that although she " has a mentally determinable mood disorder that is due to her medical condition resulting from her severe physical impairments, " it was not severe. (AR 33; J. Stip. at 22-23, 25.) The Commissioner appears to concede that the ALJ's finding was erroneous but contends that any error was harmless because the ALJ considered Plaintiff's impairments in assessing her RFC. (J. Stip. at 24 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding step-two error harmless when ALJ considered impairment at step four)).)

The step-two inquiry is " a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The claimant has the burden to show that she has one or more " severe" medically determinable impairments that can be expected to result in death or last for a continuous period of at least 12 months, as demonstrated by evidence in the form of signs, symptoms, or laboratory findings. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); § § 404.1508, 404.1520(a)(4)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005). A medically determinable impairment is " severe" if it " significantly limits [her] physical or mental ability to do basic work activities." § 404.1520(c); accord § 404.1521(a). " 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) (citation and internal quotation marks omitted).

The medical evidence of record was sufficient to establish a severe impairment under the " de minimis" threshold. It appears that Plaintiff had received mental-health treatment for depression since at least December 2009 (see AR 673), and as of the time of the hearing, she continued to see a psychiatrist weekly and psychologist monthly and take prescription mentalhealth medications (AR 33-34; see AR 62, 205). She had received in-hospital treatment for depression with psychotic features and had a reported Global Assessment Functioning (" GAF") score of 38.[2] (AR 34.) Her treating psychiatrist, treating psychologist, and examining psychologist agreed that Plaintiff suffered at least " moderate" mental-health limitations. (See AR 556 (treating psychiatrist noting " marked" limitation in social functioning; " extreme" limitations in daily living and maintaining concentration, persistence, or pace; and four or more episodes of decompensation in previous 12 months); AR 675 (treating psychologist estimating GAF scores in high 50s, indicating moderate symptoms or impairment); AR 733-34 (examining psychologist diagnosing depressive disorder with anxiety, intellectual impairment, possible personality disorder, and moderate psychosocial stressors and estimating GAF of 60); but see AR 424-25 (examining psychiatrist diagnosing mood disorder but no significant limitations).)

Although the ALJ gave valid reasons for discounting some of the evidence (see AR 33-36), Plaintiff presented adequate evidence to establish a severe impairment at step two. Only impairments " of a minimal nature which could never prevent a person from working" are screened out at step two. SSR 85-28, 1985 WL 56856, at *2 (Jan. 1, 1985) (internal quotation marks omitted). In this case, Plaintiff's depression was found to be at least " moderate" by treating and examining mental-health practitioners, and the medical evidence does not establish a duration of less than 12 months. Cf. Garcia v. Colvin, No. CV 13-8893-E, 2014 WL 3810382, at *5-6 (C.D. Cal. Aug. 1, 2014) (remanding when ALJ found depression nonsevere despite medical opinions that it was at least moderate); French v. Astrue, No. EDCV 09-1489 SS, 2010 WL 2803965, at *6 (C.D. Cal. July 15, 2010) (remanding for further proceedings when ALJ applied more than de minimis test to impairments of depression and anxiety). The ALJ himself relied on GAF scores indicating some mental-health functioning limitations, before stating, somewhat contradictorily, that he did not give them " great weight." (See AR 35.)

Although it is true that a step-two error can be harmless when the ALJ accounts for resulting limitations later in the sequential evaluation process, see Lewis, 498 F.3d at 911, here, the ALJ does not appear to have done so. He inquired at the hearing whether Plaintiff continued to receive mental-health treatment and how often, but he did not ask about her related symptoms and limitations or how her depression affected her daily functioning or would limit her ability to work. (See AR 62-63.) Nor did the alternative hypotheticals the ALJ posed to the VE contain any limitations attributable to her mental-health impairment. (See AR 71-76.) And although he summarized in his decision the evidence of mental-health impairment, he dismissed treatment records and medical opinions suggesting a moderate to severe impairment, including on erroneous grounds. (See, e.g., AR 34-35 (dismissing in-hospital treatment for severe impairment, opinion of treating psychiatrist, and limitations found by examining psychologist in part because no evidence existed limitations were expected to last 12 months despite evidence of mental-health treatment and significant findings dating to December 2009); id. (discounting opinion of treating physician because based on only " monthly visits of 10 to 15 minutes" in favor of opinions of nonexamining physician and physician who ...

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