Karen Lucille Rice v. Carolyn W. Colvin, No. 2:2017cv00353 - Document 26 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)
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Karen Lucille Rice v. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KAREN LUCILLE RICE, No. CV 17-00353 SS 12 Plaintiff, 13 v. 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 16 MEMORANDUM DECISION AND ORDER Defendant. 17 18 19 I. 20 INTRODUCTION 21 22 Plaintiff Karen Lucille Rice (“Plaintiff”) seeks review of the 23 24 final 25 Administration (hereinafter the “Commissioner” or the “Agency”) decision of the Commissioner of the Social Security 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 2 3 denying her application for Disability Insurance Benefits (“DIB”). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. 4 5 6 For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further proceedings. 7 8 II. 9 STANDARD OF REVIEW 10 11 12 13 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. “The court may set aside 14 the Commissioner’s denial of benefits when the ALJ’s findings are 15 based on legal error or are not supported by substantial evidence 16 in the record as a whole.” 17 1035 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097 18 (9th Cir. 1999)); accord Smolen v. Chater, 80 F.3d 1273, 1279 (9th 19 20 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 21 22 Aukland v. Massanari, 257 F.3d 1033, benefits However, the court must “affirm the denial of disability if it is applied supported the by correct substantial 23 Commissioner legal 24 evidence standards.” and the Chater, 93 F.3d 540, 543 (9th Cir. 1996). Marci v. 25 26 27 28 “Substantial evidence is more than a scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 2 1 1997)). 2 accept as adequate to support a conclusion.” 3 4 It is “relevant evidence which a reasonable person might Id. To determine whether substantial evidence supports a finding, the court must 5 “consider the record as a whole, weighing both evidence that 6 supports and evidence that detracts from the [Commissioner’s] 7 conclusion.” 8 2 F.3d 953, 956 (9th Cir. 1993). 9 support either affirming or reversing that conclusion, the court 10 may not substitute its judgment for that of the Commissioner. 11 Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, If the evidence could reasonably Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & 12 Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 13 14 III. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 18 19 20 To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from doing a substantial gainful activity, and that 21 22 is expected to result in death or last for a continuous period of at least twelve months. Reddick, 157 F.3d at 721 (citing 42 U.S.C. 24 § 423 (d) (1) (A)). The impairment must render the claimant 25 incapable of performing any other substantial gainful employment 26 that exists in the national economy. 27 (citing 42 U.S.C. § 423 (d) (2) (A)). 23 28 3 Tackett, 180 F.3d at 1098 1 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. 3 (1) Is the claimant presently engaged in a substantial gainful 4 5 activity? 6 no, proceed to step two. 7 If yes, the claimant is found not disabled. (2) Is the claimant’s impairment severe? 8 is found not disabled. 9 If If no, the claimant If yes, proceed to step three. (3) Does the claimant’s impairment meet or equal one of the 10 specific 11 impairments described 12 Subpart P, Appendix 1? 13 disabled. 14 in 20 C.F.R. Part 404, If yes, the claimant is found If not, proceed to step four. (4) Is the claimant capable of performing his past work? 15 yes, the claimant is found not disabled. 16 If If no, proceed to step five. 17 (5) Is the claimant able to do any other work? If not, the 18 claimant is found disabled. 19 not disabled. 20 21 If yes, the claimant is found Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 22 23 24 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520 (a) – (g) (1) & 416.920 (a) – (g) (1). 25 The claimant has the burden of proof at steps one through four, 26 27 and 28 Bustamante, 262 F.3d at 953-54. the Commissioner has the burden 4 of proof at step five. “Additionally, the ALJ has an 1 2 3 affirmative duty to assist the claimant in developing the record at every step of the inquiry.” Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform 4 5 past work, the Commissioner must show that the claimant can perform 6 some other work that exists in “significant numbers” in the 7 national economy, taking into account the claimant’s residual 8 functional capacity (“RFC”), age, education, and work experience. 9 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 10 C.F.R. §§ 404.1520 (g) (1), 416.920 (g) (1). 11 do so by the testimony of a vocational expert (“VE”) or by reference 12 The Commissioner may to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 13 14 404, 15 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 16 claimant has both exertional and non-exertional limitations, the 17 Grids are inapplicable and thus the ALJ must take VE testimony. 18 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart 19 Subpart P, Appendix 2 (commonly known v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 20 21 22 23 24 25 26 27 28 5 as “the Grids”). When a 1 IV. 2 DISCUSSION 3 4 A. 5 The ALJ Failed To Properly Assess Plaintiff’s Fibromyalgia As A Severe Impairment At Step-Two Of The Evaluation 6 7 Plaintiff contends that the ALJ erred at step two by finding 8 9 her fibromyalgia was a non-severe impairment. (Plaintiff’s 10 Memorandum In Support of the Complaint (“Pl. MSO”) at 1, 14-17). 11 The Court agrees.2 12 13 14 15 16 17 18 19 By its own terms, the evaluation at step two is a de minimis test — intended to weed out the most minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987) (O’Connor, J. concurring); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have defined the step-two inquiry as a de minimis screening device to dispose of groundless 20 claims.”) (citing Smolen, 80 F.3d at 1290). 21 severe only if the evidence establishes a slight abnormality that 22 has only a minimal effect on an individual's ability to work. An impairment is not 23 24 2 25 26 27 28 Plaintiff also contends that the ALJ erred in improperly assessing the opinions of treating physicians Drs. Wheeler and Levy. (Pl. MSO at 17-23). Plaintiff further argues that the ALJ erroneously engaged in picking and choosing through the evidence in order to support his desired RFC. (Pl. MSO at 23-25). However, it is unnecessary to reach Plaintiff’s arguments on these grounds, as the matter is remanded for the alternative reasons discussed at length in this Order. 6 1 Smolen, 80 F.3d at 1290 (internal quotations and citations 2 omitted). 3 4 5 Here, the ALJ applied more than a de minimis test at step two 6 when he concluded that Plaintiff’s fibromyalgia was not severe. 7 reaching this conclusion, the ALJ acknowledged that Dr. Joshua 8 Levy, M.D., diagnosed Plaintiff with fibromyalgia. 9 10 11 12 13 (AR 24). In The ALJ nonetheless found the impairment as non-severe because Dr. Levy’s “treatment notes fail to provide longitudinal context in the form of medical signs and findings, which would show or otherwise support the functional limitations resulting from such 14 diagnosis.” (AR 24). However, though Dr. Levy’s handwriting is 15 difficult to read, the treatment notes clearly indicate that Dr. 16 Levy diagnosed and treated Plaintiff for fibromyalgia from at least 17 December 2014 to June 2015. (See AR 367, 371, 373, 376, 383, 513). 18 19 Moreover, Dr. Levy opined that Plaintiff has physical 20 21 limitations resulting from her fibromyalgia. (See AR 509-13). In 22 particular, Dr. Levy opined Plaintiff is able to sit for 20 minutes 23 at a time for a total of 3 hours in an 8-hour workday; stand/walk 24 for 10 minutes at a time for a total of 2 hours in an 8-hour 25 workday; and lift and carry less than 10 pounds frequently, 10 26 27 pounds occasionally, and never over 10 pounds. (AR 509-10). Further, Plaintiff will need to take 3-4 unscheduled breaks during 28 7 1 2 3 an 8-hour workday for 15 minutes at a time. (AR 509). Finally, Dr. Levy opined that due to her fibromyalgia, Plaintiff is limited in the use of her hands and is not capable for working an 8-hour 4 5 day, 5 days a week. (AR 510). 6 As the Ninth Circuit recently observed in Revels v. Berryhill, 7 8 ___ F.3d ___, 2017 WL 4819137 (9th Cir. October 26, 2017): 9 evaluating whether a claimant’s residual functional “In capacity 10 renders them disabled because of fibromyalgia, the medical evidence 11 must be construed in light of fibromyalgia’s unique symptoms and 12 13 14 diagnostic methods . . . the failure to do so is error.” 2017 WL 4819137 at *10. Revels, Here, the ALJ failed to consider the 15 unique medical evidence of fibromyalgia properly at step-two of 16 the evaluation. 17 18 Because a step-two evaluation is to dispose of “groundless 19 claims,” and the evidence here establishes that Plaintiff suffered 20 from fibromyalgia resulting in limitations in her ability to work, 21 22 23 the ALJ erred fibromyalgia. in the step-two analysis regarding Plaintiff’s See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 24 2005) (“An impairment or combination of impairments may be found 25 ‘non severe only if the evidence establishes a slight abnormality 26 that has no more than a minimal effect on an individual’s ability 27 to work.’”) (emphasis in original). 28 8 Remand is required. 1 B. Remand Is Required To Remedy Defects In The ALJ’s Decision 2 3 4 5 6 Remand for further proceedings is appropriate where additional proceedings could remedy defects in the Commissioner’s decision. See Leon v. Berryhill, ___ F.3d ___, 2017 WL 515294 at * 5, (9th 7 Cir. November 7, 2017); Harman v. Apfel, 211 F.3d 1172, 1179 (9th 8 Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 9 Because the ALJ improperly evaluated the severity of Plaintiff’s 10 fibromyalgia under step two of the evaluation, the case must be 11 REMANDED to remedy this and other defects. 12 13 For the foregoing reasons, the matter is remanded for further 14 15 proceedings. 16 of 17 Plaintiff’s ability to work. 18 \\ 19 20 On remand, the ALJ must include fibromyalgia as one Plaintiff’s severe impairments \\ \\ 21 22 23 \\ \\ 24 25 26 27 28 9 and analyze its impact on 1 V. 2 CONCLUSION 3 4 5 6 Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),1 IT IS ORDERED that judgment be entered 7 REVERSING the decision of the Commissioner and REMANDING this 8 matter for further proceedings consistent with this decision. 9 IS FURTHER ORDERED that the Clerk of the Court serve copies of this 10 IT Order and the Judgment on counsel for both parties. 11 12 13 14 DATED: November 13, 2017 15 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 22 23 24 25 26 27 28 1 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 10
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