Arenas v. Colvin

          MEMORANDUM OPINION AND ORDER OF REMAND

          ALKA SAGAR UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. PROCEEDINGS

         On 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).

         On 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).

         II. SUMMARY OF ALJ’S DECISION

         The ALJ 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).

         Before 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).

         In 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).

         At step 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).

         III. STANDARD OF REVIEW

         This 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).

         IV. PLAINTIFF’S CONTENTIONS

         Plaintiff 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).

         V. DISCUSSION

         After 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.

         A. 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

         Plaintiff 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).

         At step 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).

         The 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.

         B. The ALJ Failed To Make An RFC Determination That Accounted For The Combined Effects Of All ...