United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER OF REMAND
SAGAR UNITED STATES MAGISTRATE JUDGE
to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY
ORDERED that this matter is remanded for further
administrative action consistent with this Opinion.
August 10, 2011, Plaintiff Eva Arenas
(“Plaintiff”) applied for supplemental security
income and disability insurance benefits alleging a disabling
condition beginning June 30, 2007. (AR 184-93). On January
14, 2013, Administrative Law Judge (“ALJ”) Gail
Reich examined the records and heard testimony from
Plaintiff, medical experts Thomas Maxwell and Glenn Griffin,
and vocational expert (“V.E.”) June Hagen. (AR
48-71). On March 18, 2013, the ALJ denied Plaintiff benefits
in a written decision. (AR 17-33). The Appeals Council denied
review of the ALJ’s decision. (AR 1-3).
December 1, 2014, Plaintiff filed a Complaint pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) alleging that the
Social Security Administration erred in denying benefits.
(Docket Entry No. 3). On April 14, 2015, Defendant filed an
Answer to the Complaint, (Docket Entry No. 12), and the
Certified Administrative Record (“AR”), (Docket
Entry No. 13). The parties have consented to proceed before a
United States Magistrate Judge. (Docket Entry Nos. 9, 10). On
November 25, 2015, the parties filed a Joint Stipulation
(“Joint Stip.”) setting forth their respective
positions on Plaintiff’s claims. (Docket Entry No. 23).
SUMMARY OF ALJ’S DECISION
applied the five-step process in evaluating Plaintiff’s
case. (AR 18-19). At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity
after the alleged onset date. (AR 19). At step two, the ALJ
found that Plaintiff’s severe impairments included
degenerative disc disease of the lumbosacral spine, asthma,
headaches, history of carpal tunnel syndrome, panic disorder,
and history of polysubstance abuse. (AR 19). The ALJ
determined, inter alia, that Plaintiff’s
bilateral shoulder pain and attention deficit hyperactivity
disorder (“ADHD”) were non-severe. (AR 22-23). At
step three, the ALJ found that Plaintiff’s impairments
did not meet or equal a listing found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (AR 23).
proceeding to step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”) to perform
at the “much reduced level of sedentary work”
except: she could lift 10 pounds occasionally or frequently;
she could sit for up to six hours and stand or walk up to two
hours in an eight-hour day; she was precluded from working at
heights or around hazards; she could push or pull
occasionally; she could sustain fine and gross hand
manipulation frequently; she was precluded from exposure to
concentrated levels of inhalants, including dust, pollen, and
other particulates; and she could sustain complex or detailed
work frequently but not constantly. (AR 25-26).
making her RFC finding, the ALJ determined that
Plaintiff’s pain levels were not consistent with
objective evidence and clinical findings or with her
self-reported daily activities. (AR 28). The ALJ also
summarized and assigned weight to the opinions of two medical
experts, two consulting examining physicians who had
evaluated Plaintiff’s physical and psychological
symptoms, and Plaintiff’s psychologist. (AR 28-30). The
ALJ reviewed a Third Party Questionnaire completed by
Plaintiff’s brother but did not assign it weight or
otherwise analyze it. (AR 27).
four, the ALJ determined that Plaintiff could return to her
past relevant work as a telephone solicitor and receptionist.
(AR 30). The ALJ also determined, alternatively, that
Plaintiff could seek work as a PC board touch-up screener,
addresser, document preparer - microfilming, or escort
vehicle driver. (AR 32). Accordingly, the ALJ determined that
Plaintiff was not disabled within the meaning of the Social
Security Act. (AR 32).
STANDARD OF REVIEW
court reviews the Administration’s decision to
determine if the decision is free of legal error and
supported by substantial evidence. See Brewes v.
Commissioner of Soc. Sec. Admin., 682 F.3d 1157, 1161
(9th Cir. 2012). “Substantial evidence” is more
than a mere scintilla, but less than a preponderance.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). To determine whether substantial evidence supports a
finding, “a court must consider the record as a whole,
weighing both evidence that supports and evidence that
detracts from the [Commissioner’s] conclusion.”
Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
2001) (internal quotation omitted). As a result, “[i]f
the evidence can support either affirming or reversing the
ALJ’s conclusion, [a court] may not substitute [its]
judgment for that of the ALJ.” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006).
contends that the ALJ failed to: (1) make a finding regarding
her credibility or provide specific, clear and convincing
reasons for finding her not credible; (2) analyze her
brother’s Third Party Questionnaire; (3) find that her
ADHD and bilateral shoulder pain were severe impairments; (4)
make an RFC determination that accounted for the combined
effects of all of her impairments; and (5) ask the V.E. about
a hypothetical individual suffering from all of her
impairments. (Joint Stip. at 3, 29, 33, 42-43, 48-49).
consideration of the record, the Court finds that
Plaintiff’s third claim of error is without merit. The
ALJ’s error, if any, in failing to find that
Plaintiff’s ADHD and bilateral shoulder pain were
“severe impairments” was harmless during step two
of the five-step process. However, Plaintiff’s fourth
claim of error - the ALJ’s failure to provide specific
and legitimate reasons for rejecting the opinions of certain
physicians, which likely affected the formulation of
Plaintiff’s RFC - warrants remand for further
consideration. Since the Court is remanding the matter based
on Plaintiff’s fourth claim of error, the Court will
not address Plaintiff’s remaining claims.
The ALJ’s Error, If Any, In Failing To Find That
Plaintiff’s ADHD And Bilateral Shoulder Pain Were
“Severe Impairments” Was Harmless During Step Two
Of The Five-Step Process
asserts that the ALJ erred at step two in failing to find
that her ADHD and bilateral shoulder pain were severe
impairments. (Joint Stip. at 33, 36).
two, a claimant must make a threshold showing that her
medically determinable impairments significantly limit her
ability to perform basic work activities. See Bowen v.
Yuckert, 482 U.S. 137, 145 (1987); 20 C.F.R.
§§ 404.1520(c), 416.920(c). “An impairment or
combination of impairments can 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.’”
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)
(quoting Social Security Ruling (SSR) 85-28). “[T]he
step two inquiry is a de minimis screening device to dispose
of groundless claims.” Id. (citing
Bowen, 482 U.S. at 153-54).
Ninth Circuit has ruled that, when the ALJ has resolved step
two in a claimant’s favor, any error in designating
specific impairments as severe does not prejudice a claimant
at step two. See Burch v. Barnhart, 400 F.3d 676,
682 (9th Cir. 2005) (even if ALJ erroneously failed to find
an impairment “severe, ” this error “could
only have prejudiced [the claimant] in step three (listing
impairment determination) or step five (RFC) because the
other steps, including [step two], were resolved in her
favor”). Here, the ALJ found that Plaintiff had some
severe impairments and resolved step two in her favor.
Therefore, any error in failing to find that
Plaintiff’s alleged ADHD and bilateral shoulder pain
were severe is harmless at step two.
The ALJ Failed To Make An RFC Determination That
Accounted For The Combined Effects Of All ...