Robert Timothy Bolla v. Nancy A. Berryhill, No. 2:2017cv01640 - Document 21 (C.D. Cal. 2018)
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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Robert Timothy Bolla v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT TIMOTHY BOLLA, Plaintiff, 12 13 14 15 CASE NO. CV 17-1640 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Robert Timothy Bolla (“Plaintiff”) seeks review of the final 22 decision of the Acting Commissioner of Social Security (the 23 “Commissioner” or “Agency”) denying his application for social 24 security benefits. 25 § 636(c), to the jurisdiction of the undersigned United States 26 Magistrate Judge. 27 below, the decision of the Commissioner is REVERSED and this case The parties consented, pursuant to 28 U.S.C. (Dkt. Nos. 6, 8, 13). For the reasons stated 28 Dockets.Justia.com 1 is REMANDED for further administrative proceedings consistent with 2 this decision. 3 4 II. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents the claimant from engaging in substantial gainful 10 activity and that is expected to result in death or to last for a 11 continuous period of at least twelve months. 12 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 13 The impairment must render the claimant incapable of performing 14 work 15 employment that exists in the national economy. 16 180 17 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 18 19 To decide if a claimant is entitled to benefits, an ALJ 20 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 21 The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? 25 not, proceed to step two. 26 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 27 claimant is found not disabled. 28 three. 2 severe? If not, If the If so, proceed to step 1 (3) Does the claimant’s impairment meet or equal one of the 2 specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 14 (g)(1), 416.920(b)-(g)(1). 15 The claimant has the burden of proof at steps one through four 16 17 and the 18 Bustamante, 262 F.3d at 953-54. 19 affirmative duty to assist the claimant in developing the record 20 at every step of the inquiry. 21 claimant meets his or her burden of establishing an inability to 22 perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity (“RFC”), age, education, and work 26 experience. 27 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 28 may do so by the testimony of a VE or by reference to the Medical- the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 3 The Commissioner 1 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 2 Appendix 2 (commonly known as “the grids”). 3 240 F.3d 1157, 1162 (9th Cir. 2001). 4 exertional (strength-related) and non-exertional limitations, the 5 Grids are inapplicable and the ALJ must take the testimony of a 6 vocational expert (“VE”). 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 9 10 III. 11 THE ALJ’S DECISION 12 13 The ALJ employed the five-step sequential evaluation process 14 in evaluating Plaintiff’s case. 15 Plaintiff has not engaged in substantial gainful activity since 16 October 23, 2012, the alleged onset date. 17 the ALJ found that Plaintiff’s diabetes mellitus, type II; a 18 history of kidney stones, partially resolved; degenerative joint 19 disease of the left shoulder; and obesity are severe impairments. 20 (AR 31). 21 not have an impairment or combination of impairments that meet or 22 medically equal the severity of any of the listings enumerated in 23 the regulations. (AR 34). At step one, the ALJ found that (AR 31). At step two, At step three, the ALJ determined that Plaintiff does 24 25 26 27 28 4 1 The ALJ then assessed Plaintiff’s RFC and concluded that he 2 can perform medium work, as defined in 20 C.F.R. § 404.1567(c),1 3 except: 4 5 [Plaintiff] is limited to occasional climbing of ladders, 6 ropes, and scaffolds and occasional reaching overhead 7 bilaterally. 8 climbing 9 kneeling, crouching, and crawling. of [Plaintiff] is able to engage in frequent stairs or ramps and frequent stooping, [Plaintiff] must 10 avoid concentrated exposure to vibration, unprotected 11 heights, and operation of hazardous moving machinery. 12 13 (AR 34). At step four, the ALJ found that Plaintiff is capable of 14 performing past relevant work as a winery worker. 15 Accordingly, 16 disability as defined by the Social Security Act since October 23, 17 2012, the alleged onset date. the ALJ found that Plaintiff was not (AR 38). under a (AR 39). 18 19 IV. 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. 24 aside the Commissioner’s denial of benefits when the ALJ’s findings 25 are based on legal error or are not supported by substantial 26 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). 27 28 1 5 “[The] court may set 1 evidence in the record as a whole.” 2 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 3 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 4 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 5 “Substantial evidence is more than a scintilla, but less than 6 7 a preponderance.” 8 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 9 evidence which a reasonable person might accept as adequate to Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant 10 support a conclusion.” To determine whether substantial 11 evidence supports a finding, the court must “ ‘consider the record 12 as a whole, weighing both evidence that supports and evidence that 13 detracts from the [Commissioner’s] conclusion.’ ” 14 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 15 1993)). 16 or reversing that conclusion, the court may not substitute its 17 judgment for that of the Commissioner. 18 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 19 1457 (9th Cir. 1995)). Aukland, 257 If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 20 21 V. 22 DISCUSSION 23 24 25 A. The ALJ Failed To Properly Weigh The Treating Physicians’ Opinions 26 27 An ALJ must afford the greatest weight to the opinion of the 28 claimant's treating physician. The opinions of treating physicians 6 1 are entitled to special weight because the treating physician is 2 hired to cure and has a better opportunity to know and observe the 3 claimant as an individual. 4 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 5 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 6 Where the treating doctor’s opinion is not contradicted by another 7 doctor, it may be rejected only for “clear and convincing” reasons. 8 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 9 Even if the treating physician’s opinion is contradicted by another 10 doctor, the ALJ may not reject this opinion without providing 11 specific, legitimate reasons, supported by substantial evidence in 12 the record. 13 (9th Cir. 2007); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 14 (9th Cir. 2008). 15 ‘controlling weight’ because it is not ‘well-supported’ or because 16 it is inconsistent with other substantial evidence in the record,” 17 the ALJ shall consider “specified factors in determining the weight 18 it will be given[, including] . . . the length of the treatment 19 relationship and the frequency of examination by the treating 20 physician[ ] 21 relationship between the patient and the treating physician.” 22 495 F.3d at 631 (citation omitted); see 20 C.F.R. §§ 404.1527(d)(2) 23 (listing factors to consider), 416.927(d)(2) (same). Connett v. Barnhart, 340 F.3d 871, 874 Id. at 830–31; see Orn v. Astrue, 495 F.3d 625, 632 and “If a treating physician’s opinion is not given the nature and extent of the treatment Orn, 24 25 1. Dr. Bernard 26 27 On January 23, 2014, Jeanne Dustin Bernard, M.D., Plaintiff’s 28 endocrinologist, opined that because of Plaintiff’s uncontrolled 7 1 type 2 diabetes, he could occasionally lift ten pounds, frequently 2 lift less than ten pounds, stand/walk less than two hours in an 3 eight-hour day, and sit continuously for less than six hours in an 4 eight-hour day. 5 a frozen left shoulder, Plaintiff is moderately limited in the use 6 of his upper extremities. 7 Bernard noted that Plaintiff’s diabetes had progressed from type 2 8 (non-insulin dependent) to type 1 (insulin dependent). 9 She opined that due to Plaintiff’s chronic fatigue, physical and 10 mental stress and high blood sugar readings, he is unable to work. 11 (AR 12 conditions will never change.” 13 Bernard’s opinions “little probative weight,” finding that they 14 are inconsistent with treatment notes and minimal conservative 15 care. 16 forms were “brief and did not include any narrative discussion of 17 physical findings to support the assessed limitations.” 18 38). 390). (AR 388). Dr. Bernard (AR 37-38). Because of arthritis in his hands and (AR 388). On February 17, 2015, Dr. concluded that (AR 390). (AR 390). Plaintiff’s “chronic The ALJ gave Dr. The ALJ also rejected the opinions because the (AR 37- The ALJ’s analysis is not supported by substantial evidence. 19 20 First, Dr. Bernard’s opinions were not mere check-the-box “The ALJ need not accept the opinion of any physician, 21 forms. 22 including 23 conclusory, 24 Thomas, 278 F.3d at 957; see Molina v. Astrue, 674 F.3d 1104, 1111 25 (9th Cir. 2012) (“ALJ may permissibly reject check-off reports that 26 do not contain any explanation of the bases of their conclusions.”) 27 (citation and alterations omitted). 28 opinions explained that Plaintiff’s limitations were due to his a treating and physician, inadequately if supported 8 that opinion by clinical is brief, findings.” Here, however, Dr. Bernard’s 1 uncontrolled diabetes and complications related to his diabetes, 2 including osteoarthritis in both hands, a frozen left shoulder, 3 chronic fatigue and physical and mental stress, and high blood 4 sugar readings. (AR 388, 390). 5 6 Second, the ALJ's decision overlooks important evidence in 7 the medical records. The ALJ contends that Dr. Bernard’s opinions 8 are inconsistent with the treatment notes because in October 2013 9 and February 2015, Plaintiff was intact neurologically. (AR 37- 10 38). To the contrary, on October 2, 2013, Plaintiff complained of 11 chronic fatigue, arthritis in his hands and severe back pain. 12 332). 13 positive for diabetic neuropathy. 14 Plaintiff complained of fatigue and arthritis in his hips. 15 397). 16 neurological 17 vibratory hammer test, which are used to check for peripheral 18 neuropathy, were each positive bilaterally. (AR On examination, Plaintiff was hyperglycemic and tested (AR 332). On February 17, 2015, (AR On examination, Plaintiff was hyperglycemic with abnormal findings. (AR 397). A monofilament test and (AR 397). 19 20 Further, Dr. Bernard’s opinions were consistent with the 21 treatment notes and laboratory tests that she performed. 22 Bernard 23 February 2013. (AR 332-75, 388, 390-427). At Dr. Bernard’s initial 24 intake 25 uncontrolled with fluctuating blood sugars, arthritis, chronic 26 fatigue and frozen shoulder, along with muscular cramping and 27 numbness in both arms. 28 Plaintiff was experiencing hypoglycemic events due to problems with treated Plaintiff examination, she on a continuing diagnosed (AR 343-45). 9 type 2 basis beginning diabetes Dr. in mellitus, Dr. Bernard concluded that 1 insulin overcorrection. 2 that 3 fluctuations in his blood-sugar levels, with related hypoglycemic 4 events and difficulties determining the proper insulin dosage. (AR 5 332-75, 390-427). 6 features,” including positive monofilament and vibratory hammer 7 testing of Plaintiff’s lower extremities. 8 test for diabetic neuropathy. 9 406, 418). Plaintiff’s (AR 343). diabetes was Dr. Bernard consistently found uncontrolled and noted large Dr. Bernard also found “additional diabetic These tests are used to (AR 332, 337, 340, 343, 397, 402, In January 2014, Dr. Bernard concluded that Plaintiff’s 10 diabetes had progressed from type 2 to type 1. (AR 420). 11 Subsequently, Plaintiff’s type 1 diabetes remained uncontrolled 12 despite Plaintiff’s strict adherence to his treatment regimen. (AR 13 399, 403, 408, 413, 452). 14 entries in the medical records while ignoring many others that 15 indicate continued, severe impairments. 16 F.3d 995, 1017 (9th Cir. 2014); Holohan v. Massanari, 246 F.3d 17 1195, 1207 (9th Cir. 2001). The ALJ cannot selectively rely on some Garrison v. Colvin, 759 18 19 Finally, the ALJ does not explain how Plaintiff’s “minimal 20 conservative care” (AR 37) is inconsistent with Dr. Bernard’s 21 opinions regarding Plaintiff’s limitations from diabetes. 22 Bernard concluded that “[Plaintiff’s] condition is a hereditary 23 disease that runs in his family, meaning his chronic conditions 24 will never change.” 25 treatment for those with type 1 diabetes is limited to insulin 26 injections or the use of an insulin pump. 27 Diabetes, available at www.mayoclinic.org (last visited Dec. 18, 28 2017) (hereinafter “Mayo Clinic, Diabetes”). (AR 390). Dr. There is no cure for diabetes and 10 See Mayo Clinic, The ALJ does not 1 identify any additional or more aggressive care that is available 2 for someone with type 1 diabetes. 3 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation 4 to play doctor and make their own independent medical findings.”). 5 Hugh Perkin, M.D., Plaintiff’s urologist, noted in February 2015, 6 that Plaintiff “has incredibly high insulin requirements for his 7 diabetes and requires close monitoring and care.”2 8 Despite Plaintiff strict adherence to his treatment regimen, his 9 diabetes remains uncontrolled, which “can have many adverse and See Rohan v. Chater, 98 F.3d (AR 431). (AR 431). 10 severe health affects [sic].” Dr. Perkin concluded that 11 Plaintiff’s health issues are not due to medication noncompliance 12 but are instead “a genetic and metabolic predisposition.” 13 431). 14 Plaintiff’s diabetic condition. (AR Again, the record clearly demonstrates the severity of 15 16 In sum, the ALJ did not provide specific and legitimate 17 reasons for rejecting Dr. Bernard’s opinions. 18 shall reevaluate the weight to be afforded Dr. Bernard’s opinions. 19 If the ALJ finds appropriate reasons for not giving the opinions 20 controlling weight, the ALJ may not reject the opinions without 21 providing specific and legitimate reasons supported by substantial 22 evidence in the record. On remand, the ALJ 23 24 25 26 27 28 The ALJ gave Dr. Perkin’s conclusions “significant probative weight.” (AR 36). 2 11 2. 1 Dr. Sigmund 2 3 On July 22, 2013, Stephen Sigmund, M.D., Plaintiff’s primary 4 care physician, opined that because of Plaintiff’s uncontrolled 5 type 2 diabetes and associated severe pain and fatigue, he is 6 unable to work for at least twelve months. 7 3, 2014, Dr. Sigmund opined that due to Plaintiff’s type 1 diabetes 8 and 9 pounds, frequently lift less than ten pounds, stand/walk less than 10 two hours in an eight-hour day, and sit continuously for less than 11 six hours in an eight-hour day. 12 that because of Plaintiff’s osteoarthritis in both hands and a 13 frozen left shoulder, he has moderate limitations in his upper 14 extremities, bilaterally. 15 opinions 16 inconsistent with mild physical evidence, treatment notes and 17 minimal conservative care. 18 opinions because the forms were “brief and did not include any 19 narrative discussion of physical findings to support the assessed 20 limitations.” 21 substantial evidence. associated complications, “little could (AR 389). (AR 389). probative (AR 37). he (AR 457). On February occasionally lift ten Dr. Sigmund also opined The ALJ gave Dr. Sigmund’s weight,” (AR 37). finding that they were The ALJ also rejected the The ALJ’s analysis is not supported by 22 23 First, Dr. Sigmund’s opinions were not mere check-the-box Dr. Sigmund explained that Plaintiff’s limitations were 24 forms. 25 due to his uncontrolled diabetes and complications related to his 26 diabetes, including osteoarthritis in both hands, a frozen left 27 shoulder, and chronic fatigue and pain. 28 12 (AR 389, 457). 1 Second, the ALJ's decision again overlooks important medical 2 evidence when it considers Dr. Sigmund's opinions. The ALJ cites 3 three medical records in concluding that Dr. Sigmund’s opinions 4 are contrary to “minor physical findings.” (AR 37). These records, 5 however, identify chronic, largely uncontrolled impairments. 6 444, 452, 460). 7 Plaintiff’s 8 various 9 tolerate and with poor efficacy. (AR On January 29, 2014, Dr. Sigmund concluded that diabetes treatments is that uncontrolled, have been requiring difficult (AR 452). for multiple Plaintiff and to On October 15, 2014, 10 Plaintiff complained of arthritis and chronic fatigue. 11 While Dr. Sigmund found that Plaintiff’s fatigue was controlled, 12 he concluded that Plaintiff’s uncontrolled diabetes and chronic 13 osteoarthritis were under only fair control. 14 30, 2015, Dr. Sigmund assessed active, uncontrolled diabetes with 15 kidney complications. (AR 444). (AR 444). On June (AR 460). 16 17 Further, Dr. Sigmund’s opinions were consistent with the 18 treatment notes and laboratory tests that he performed or reviewed. 19 Dr. Sigmund treated Plaintiff on a regular basis beginning in 20 October 2012. 21 Sigmund diagnosed chronic renal insufficiency, type 2 diabetes and 22 fatigue. 23 Plaintiff’s diabetes was uncontrolled. 24 Dr. Sigmund opined that Plaintiff has chronic left shoulder pain, 25 fatigue, uncontrolled type 2 diabetes, back pain and osteoarthritis 26 in both hands. 27 that Plaintiff’s left frozen shoulder causes difficulty of motion 28 passive and active in any direction greater than twenty degrees (AR 314-31, 434-65). (AR 316). On December 13, 2012, Dr. In February 2013, Dr. Sigmund concluded that (AR 327-28). (AR 323). In July 2013, On examination, Dr. Sigmund found 13 1 and that Plaintiff’s 2 activities of daily living. (AR 328). In January 2014, Dr. Sigmund 3 reviewed 4 Plaintiff’s diabetes and fatigue are uncontrolled. 5 April and June 2015, Dr. Sigmund reiterated that Plaintiff has 6 uncontrolled diabetes with kidney complications, chronic kidney 7 disease, chronic fatigue and malaise, and osteoarthritis. (AR 434- 8 37, 460-64). Dr. osteoarthritis Bernard’s treatment causes records difficulties and concluded (AR 452). with that In 9 10 Finally, as discussed above, the ALJ does not explain how 11 Plaintiff’s “minimal conservative care” (AR 37) is inconsistent 12 with Dr. Sigmund’s opinions or what other care Plaintiff should 13 have received. 14 those with type 1 diabetes is limited to insulin injections or the 15 use of an insulin pump. 16 or more aggressive care that is appropriate for someone with type 17 1 diabetes. There is no cure for diabetes and treatment for The ALJ does not identify any additional 18 19 In sum, the ALJ failed to provide specific and legitimate 20 reasons for rejecting Dr. Sigmund’s opinions. 21 shall reevaluate the weight to be afforded Dr. Sigmund’s opinions. 22 If the ALJ finds appropriate reasons for not giving the opinions 23 controlling weight, the ALJ may not reject the opinions without 24 providing specific and legitimate reasons supported by substantial 25 evidence in the record. 26 27 28 14 On remand, the ALJ 1 B. The ALJ Failed To Properly Assess Plaintiff’s Type 1 Diabetes, 2 Fatigue, Neuropathy, Osteoarthritis And Kidney Disease As 3 Severe Impairments At Step Two Of The Evaluation 4 5 By its own terms, the evaluation at step two is a de minimis 6 test intended to weed out the most minor of impairments. 7 v. Yuckert, 482 U.S. 137, 153–54 (1987) (O’Connor, J., concurring); 8 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have 9 defined the step-two inquiry as a de minimis screening device to See Bowen 10 dispose of groundless claims.”). An impairment is not severe only 11 if the evidence establishes a slight abnormality that has only a 12 minimal effect on an individual’s ability to work. 13 at 1290 (internal citation omitted). Smolen, 80 F.3d 14 15 As a threshold matter, Plaintiff’s type 1 diabetes is well While the ALJ found Plaintiff’s type 2 16 established by the record. 17 diabetes to be a severe impairment (AR 31), she did not acknowledge 18 that in January 2014, Plaintiff’s diabetes had progressed from type 19 2 to type 1 and that it subsequently remained uncontrolled despite 20 Plaintiff’s strict adherence to his treatment regimen. 21 403, 408, 413, 420, 452). 22 attacks and destroys insulin-producing cells in the pancreas, 23 leaving the body with little or no insulin and a build-up of sugar 24 in the bloodstream. (AR 399, In type 1 diabetes, the immune system See Mayo Clinic, Diabetes. 25 26 Moreover, the medical record indicates that Plaintiff’s type 27 1 diabetes has led to multiple long-term complications, including 28 nerve damage (neuropathy), kidney damage (nephropathy) and chronic 15 1 fatigue. See Mayo Clinic, Diabetes (noting that fatigue is a 2 common symptom of diabetes and that long-term complications include 3 neuropathy and kidney disease). 4 signs of diabetic neuropathy. 5 406, 418). 6 can occur if you have diabetes. 7 injure nerve fibers throughout your body, but diabetic neuropathy 8 most often damages nerves in your legs and feet.” 9 Diabetic Neuropathy, available at www.mayoclinic.org (last visited Dr. Bernard consistently found (AR 332, 337, 340, 343, 397, 402, “Diabetic neuropathy is a type of nerve damage that High blood sugar (glucose) can Mayo Clinic, 10 Dec. 19, 2017). 11 Plaintiff has uncontrolled diabetes with kidney complications, 12 including chronic kidney disease. 13 nephropathy is a serious kidney-related complication of type 1 14 diabetes[, which] . . . affects the ability of your kidneys to do 15 their usual work of removing waste products and extra fluid from 16 your 17 www.mayoclinic.org 18 Plaintiff’s 19 chronic fatigue and osteoarthritis of his hands and hips. 20 28, 332, 343-45, 388-90, 397, 434-37, 457, 460-64). 21 ALJ’s discussion of Plaintiff's condition does not fairly represent 22 the significance of his type 1 diabetes and the limitations and 23 complications arising from it, as reflected in the record. body.” In April and June 2015, Dr. Sigmund concluded that Mayo Clinic, (last physicians (AR 434-37, 460-64). Diabetic visited Nephropathy, Dec. consistently 19, found available 2017). that “Diabetic at Further, Plaintiff has (AR 327Thus, the 24 25 Because a step-two evaluation is to dispose of “groundless 26 claims,” and the evidence here established that Plaintiff suffered 27 from type 1 diabetes, neuropathy, kidney disease, chronic fatigue 28 and osteoarthritis, the ALJ erred by not addressing these ailments. 16 1 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The 2 evidence in the record was sufficient for the ALJ to conclude that 3 Plaintiff’s type 1 diabetes, neuropathy, kidney disease, chronic 4 fatigue and osteoarthritis were severe impairments at step two 5 under the de minimis test. 6 7 Although Defendant argues that this error was harmless (Dkt. 8 No. 19 at 3-4), the Court disagrees. Because “[s]tep two is merely 9 a threshold determination[,] . . . [i]t is not meant to identify 10 the impairments that should be taken into account when determining 11 the RFC.” 12 2017). 13 in fact, considered in assessing the claimant’s RFC. 14 (“The 15 whether certain impairments are considered ‘severe’ or not.”) 16 (emphasis in original). 17 impairments were taken into account” in assessing the claimant’s 18 RFC, no remand is required. 19 account in the RFC for the limitations documented by Plaintiff’s 20 type 1 diabetes, neuropathy, kidney disease, chronic fatigue and 21 osteoarthritis, including associated complications such as chronic 22 fatigue, nerve damage and upper extremity limitations, as discussed 23 above. 24 neuropathy, kidney disease, chronic fatigue and osteoarthritis as 25 severe, and also failing to take into account the limitations 26 caused by Plaintiff's various illnesses, the ALJ did not provide 27 adequate consideration to all of Plaintiff’s limitations during 28 the five-step evaluation process. Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. Thus, a step-two error is harmless if the impairment was, RFC By therefore should be failing to exactly the same Id. at 1049 regardless of Accordingly, where as in Buck, “all Id. recognize 17 Here, however, the ALJ did not Plaintiff's type 1 diabetes 1 For the foregoing reasons, the matter is remanded for further 2 proceedings. On remand, the ALJ must evaluate Plaintiff’s type 1 3 diabetes, 4 osteoarthritis 5 limitations imposed by Plaintiff’s type 1 diabetes, neuropathy, 6 kidney disease, chronic fatigue and osteoarthritis in the ALJ’s 7 overall evaluation of Plaintiff. 8 of Plaintiff’s type 1 diabetes, neuropathy, kidney disease, chronic 9 fatigue and osteoarthritis on his RFC.3 neuropathy, as kidney severe disease, impairments at chronic step-two fatigue and and include The ALJ must consider the impact 10 11 VI. 12 CONCLUSION 13 14 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 15 the decision of the Commissioner and REMANDING this matter for 16 further proceedings consistent with this decision. 17 ORDERED that the Clerk of the Court serve copies of this Order and 18 the Judgment on counsel for both parties. IT IS FURTHER 19 20 DATED: January 22, 2018 21 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 24 25 3 26 27 28 Plaintiff also argues that the ALJ erred by failing to properly consider listing 9.00, his credibility, and the VE’s testimony. (Dkt. No. 14 at 11-19, 21-24). 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. 18 1 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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