United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
social security action was submitted to the court without
oral argument for ruling on plaintiff's motion for
summary judgment and defendant's cross-motion for summary
judgment.Plaintiff's motion argues that the
Administrative Law Judge's step two finding, treatment of
the medical opinion evidence, and treatment of
plaintiff's subjective testimony constituted error. For
the reasons explained below, plaintiff's motion is
granted in part, the decision of the Commissioner of Social
Security (“Commissioner”) is reversed, and the
matter is remanded for further proceedings.
10, 2012, plaintiff filed an application for Disability
Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“the Act”) alleging
disability beginning on June 1, 2008. (Transcript
(“Tr.”) at 31.) Plaintiff's application was
denied initially, (id. at 104-07), and upon
reconsideration. (Id. at 110-14.)
plaintiff requested a hearing which was held before an
Administrative Law Judge (“ALJ”) on July 15,
2013. (Id. at 46-78.) Plaintiff was represented by
an attorney and testified at the administrative hearing.
(Id. at 46-48.) In a decision issued on December 2,
2013, the ALJ found that plaintiff was not disabled.
(Id. at 41.) The ALJ entered the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful
activity since June 1, 2008, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments: chronic
pain syndrome and history of right non-dominant shoulder
arthroscopic surgery (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in 20
CFR 404.1567(c) except she is limited to occasional overhead
reaching with the right upper extremity.
6. The claimant is capable of performing past relevant work
as a customer service representative and home health aide.
This work does not require the performance of work-related
activities precluded by the claimant's residual
functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined
in the Social Security Act, from June 1, 2008, through the
date of this decision (20 CFR 404.1520(f)).
(Id. at 33-40.)
April 22, 2015, the Appeals Council denied plaintiff's
request for review of the ALJ's December 2, 2013
decision. (Id. at 1-4.) Plaintiff sought judicial
review pursuant to 42 U.S.C. § 405(g) by filing the
complaint in this action on June 16, 2015. (ECF No. 1.)
district court reviews the Commissioner's final decision
for substantial evidence, and the Commissioner's decision
will be disturbed only if it is not supported by substantial
evidence or is based on legal error.” Hill v.
Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).
Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162
(9th Cir. 2001); Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997).
reviewing court must consider the entire record as a whole
and may not affirm simply by isolating a ‘specific
quantum of supporting evidence.'” Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)
(quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th
Cir. 1989)). If, however, “the record considered as a
whole can reasonably support either affirming or reversing
the Commissioner's decision, we must affirm.”
McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir.
five-step evaluation process is used to determine whether a
claimant is disabled. 20 C.F.R. § 404.1520; see also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The
five-step process has been summarized as follows:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not,
proceed to step two.
Step two: Does the claimant have a “severe”
impairment? If so, proceed to step three. If not, then a
finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination
of impairments meet or equal an impairment listed in 20
C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is
automatically determined disabled. If not, proceed to step
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is
not disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
claimant bears the burden of proof in the first four steps of
the sequential evaluation process. Bowen v. Yuckert,
482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the
burden if the sequential evaluation process proceeds to step
five. Id.; Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999).
pending motion asserts the following three principal claims:
(1) the ALJ erred at step two of the sequential evaluation;
(2) the ALJ's treatment of the medical opinion evidence
constituted error; and (3) the ALJ's treatment of
plaintiff's subjective testimony constituted error.
(Pl.'s MSJ (ECF No. 15) at 13-33.)
Step Two Error
two of the sequential evaluation, the ALJ must determine if
the claimant has a medically severe impairment or combination
of impairments. Smolen v. Chater, 80 F.3d 1273,
1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at
140-41). The Commissioner's regulations provide that
“[a]n impairment or combination of impairments is not
severe if it does not significantly limit [the
claimant's] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1521(a) &
416.921(a). Basic work activities are “the abilities
and aptitudes necessary to do most jobs, ” and those
abilities and aptitudes include: (1) physical functions such
as walking, standing, sitting, lifting, and carrying; (2)
capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work
setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).
Supreme Court has recognized that the Commissioner's
“severity regulation increases the efficiency and
reliability of the evaluation process by identifying 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.” Yuckert, 482 U.S. at 153. However,
the regulation must not be used to prematurely disqualify a
claimant. Id. at 158 (O'Connor, J., concurring).
“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,
80 F.3d at 1290 (internal quotation marks and citation
ALJ may find that a claimant lacks a medically severe
impairment or combination of impairments only when his
conclusion is ‘clearly established by medical
evidence.'” Webb v. Barnhart, 433 F.3d
683, 687 (9th Cir. 2005) (quoting Social Security Ruling
(“SSR”) 85-28); see also Ukolov v.
Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant
failed to satisfy step two burden where “none of the
medical opinions included a finding of impairment, a
diagnosis, or objective test results”). “Step
two, then, is ‘a de minimis screening device [used] to
dispose of groundless claims[.]'” Webb,
433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290);
see also Edlund v. Massanari, 253 F.3d 1152, 1158-59
(9th Cir. 2001) (discussing this “de minimis
standard”); Tomasek v. Astrue, No. C-06-07805
JCS, 2008 WL 361129, at *13 (N.D. Cal. Feb.11, 2008)
(describing claimant's burden at step two as
plaintiff argues that the ALJ erred at step two of the
sequential evaluation by finding that plaintiff's carpal
tunnel syndrome and mental impairments of anxiety disorder
and ADHD were ...