Elaine Kosogon v. Nancy Berryhill, No. 2:2017cv05746 - 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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Elaine Kosogon v. Nancy Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELAINE KOSOGON, Plaintiff, 12 13 14 15 Case No. CV 17-5746 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 22 23 24 25 26 27 Plaintiff Elaine Kosogon (“Plaintiff”) brings this action seeking to reverse or, in the alternative, to remand the decision of the Commissioner of the Social Security Administration (the “Commissioner” or the “Agency”) denying her application for social security benefits. 636(c), to the The parties consented, pursuant to 28 U.S.C. § jurisdiction Magistrate Judge. of the undersigned (Dkt. Nos. 12-14). United States For the reasons stated 28 Dockets.Justia.com 1 below, the decision of the Agency is REVERSED and REMANDED for 2 further administrative proceedings. 3 4 II. 5 PROCEDURAL HISTORY 6 7 On July 17, 2014, Plaintiff filed an application for 8 disability benefits claiming that she became disabled on July 7, 9 2014. (“Certified Administrative Record (‘AR’),” Dkt. No. 16 at 10 154-57). The Agency denied her application on December 15, 2014. 11 (AR 94, 97-102). 12 held before Administrative Law Judge (“ALJ”) Richard Breen on 13 December 17, 2015. 14 and testified. 15 expert, also testified at the hearing. Plaintiff then requested a hearing, which was (AR 32-82). (AR 39-73). Plaintiff appeared with counsel Elizabeth Brown-Ramos, a vocational (AR 73-82). 16 17 On April 8, 2016, the ALJ issued a decision denying benefits. 18 (AR 16-31). Plaintiff sought review before the Appeals Council, 19 which denied her request on June 5, 2017. 20 filed the instant action on August 8, 2017. 21 No. 1). (AR 1-6). Plaintiff (“Complaint,” Dkt. 22 23 III. 24 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 25 26 27 To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment 28 2 1 that prevents her from engaging in substantial gainful activity1 2 and that is expected to result in death or to last for a continuous 3 period of at least twelve months. 4 721 5 impairment must render the claimant incapable of performing the 6 work she previously performed and any other substantial gainful 7 employment that exists in the national economy. 8 180 9 § 423(d)(2)(A)). (9th F.3d Cir. 1998) 1094, (citing 1098 (9th 42 Reddick v. Chater, 157 F.3d 715, U.S.C. Cir. § 423(d)(1)(A)). 1999) The Tackett v. Apfel, (citing 42 U.S.C. 10 11 12 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 13 14 (1) Is the claimant presently engaged in substantial 15 gainful activity? 16 disabled. 17 (2) If so, the claimant is found not If not, proceed to step-two. Is the claimant’s impairment severe? 18 claimant is found not disabled. 19 If not, the step-three. 20 (3) If so, proceed to Does the claimant’s impairment meet or equal the 21 requirements of any impairments listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? 23 claimant is found disabled. 24 step-four. 25 If so, the If not, proceed to \\ 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 3 1 (4) Is the claimant capable of performing his past 2 work? If so, the claimant is found not disabled. 3 If not, proceed to step-five. 4 (5) Is the claimant able to do any other work? If not, 5 the claimant is found disabled. If so, the claimant 6 is found not disabled. 7 8 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 9 262 F.3d 949, 953-54 (9th Cir. 2001) (citation omitted); 20 C.F.R. 10 § 416.920(b)-(g)(1). 11 The claimant has the burden of proof at steps-one through 12 - 13 four and the Commissioner has the burden of proof at step-five. 14 Bustamante, 262 F.3d at 953-54. 15 meets her burden of establishing an inability to perform the past 16 work, the Commissioner must show that the claimant can perform some 17 other work that exists in “significant numbers” in the national 18 economy, taking into account the claimant’s residual functional 19 capacity (“RFC”),2 age, education, and work experience. 20 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 21 do so by the testimony of a vocational expert or by reference to 22 the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 23 Subpart P, Appendix 2 (commonly known as “the Grids”). 24 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 25 has both exertional If, at step-four, the claimant (strength-related) Tackett, The Commissioner may and Osenbrock When a claimant nonexertional 26 27 28 Residual functional capacity is “the most [one] can still do despite [her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. § 416.945(a). 2 4 1 limitations, the Grids are inapplicable and the ALJ must take the 2 testimony of a vocational expert. 3 869 (9th Cir. 2000). Moore v. Apfel, 216 F.3d 864, 4 5 IV. 6 THE ALJ’S DECISION 7 8 The ALJ employed the five-step sequential evaluation process. 9 At step-one, the ALJ found that Plaintiff has not engaged in 10 substantial gainful activity since her alleged onset date. 11 21). 12 osteoarthritis of the left knee are severe impairments,3 but found 13 that Plaintiff’s major depressive disorder is “nonsevere” because 14 it does not cause more than minimal limitation of her ability to 15 perform basic mental work activities. 16 the ALJ found that Plaintiff’s impairments, either singly or in 17 combination, 18 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 19 (AR 25). 20 severe disabilities, she retains a RFC compatible with her previous 21 relevant work. 22 perform light work as defined in 20 C.F.R. § 404.1567(b) with the 23 following additional limitations: (AR At step-two, the ALJ found that Plaintiff’s obesity and do not meet or equal (AR 21-22). the At step-three, requirements of any At step-four, the ALJ determined that despite Plaintiff’s (AR 26-27). The ALJ concluded that Plaintiff can 24 25 26 27 28 The ALJ also found that Plaintiff’s myopia, hypertension, and diabetes mellitus are not severe impairments because the evidence does not demonstrate that these are more than slight abnormalities that cause more than minimal limitation in claimant’s ability to perform basic work activities. (AR 22). Plaintiff does not challenge these findings. 3 5 1 [T]his individual can occasionally lift and carry 20 2 pounds, frequently lift and/or carry 10 pounds; can sit, 3 stand, or walk for up to 6 hours in a workday; and push 4 and pull as much as she can lift or carry. 5 6 (AR 25). 7 disabled. Accordingly, the ALJ found that Plaintiff was not (AR 27). 8 9 V. 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. § 405(g), a district court may review the 13 Commissioner’s decision to deny benefits. “[The] court may set 14 aside the Commissioner’s denial of benefits when the ALJ’s findings 15 are based on legal error or are not supported by substantial 16 evidence in the record as a whole.” 17 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 18 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 19 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 20 21 “Substantial evidence is more than a scintilla, but less than 22 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 23 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 24 evidence which a reasonable person might accept as adequate to 25 support a conclusion.” 26 evidence supports a finding, the court must “‘consider the record 27 as a whole, weighing both evidence that supports and evidence that 28 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d (Id.). It is “relevant To determine whether substantial 6 1 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 2 1993)). 3 or reversing that conclusion, the court may not substitute its 4 judgment for that of the Commissioner. 5 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 6 1457 (9th Cir. 1995)). If the evidence can reasonably support either affirming 7 VI. 8 Reddick, 157 F.3d at 720- DISCUSSION 9 10 A. Plaintiff’s Claims 11 Plaintiff asserts two claims. 12 First, Plaintiff disputes the 13 ALJ’s step-two finding that her mental impairments are nonsevere. 14 (“Plaintiff’s Memo,” Dkt. No. 17 at 5-10). 15 contends that the ALJ improperly considered the opinions of her 16 two treating physicians, Karina Shulman, M.D., and Sofia Vaisman, 17 M.D., during the step-two analysis. Plaintiff further (Id.). 18 Second, Plaintiff disputes the ALJ’s rejection of her pain 19 20 and symptom testimony. (AR 10-16). However, because the Court 21 finds the ALJ erred by finding Plaintiff’s mental impairments 22 nonsevere, it is unnecessary for the Court to address Plaintiff’s 23 second claim. 24 25 B. The Step-Two Evaluation 26 27 28 By its own terms, the evaluation at step-two is a de minimis test intended to weed out the most minor of impairments. 7 See Bowen 1 v. Yuckert, 482 U.S. 137, 153-154 (1987); Edlund v. Massanari, 253 2 F.3d 1152, 1158 (9th Cir. 2005) (stating that the step-two inquiry 3 is a de minimis screening device to dispose of groundless claims) 4 (quoting Smolen, 80 F.3d at 1290); Webb v. Barnhart, 433 F.3d 683, 5 687 (9th Cir. 2005) (step-two is a “de minimis threshold”). 6 impairment is not severe only if the evidence establishes a slight 7 abnormality that has only a minimal effect on an individual’s 8 ability to work. 9 citations omitted) (emphasis added). An Smolen, 80 F.3d at 1290 (internal quotations and 10 At step-two of the evaluation, the ALJ is bound by 20 C.F.R. 11 12 §404.1520a. 13 psychiatric review technique. 14 claimant has a medically determinable mental impairment, rate the 15 degree 16 determine the severity of the mental impairment and then, if 17 severe, proceed to step-three of the five-step evaluation. 18 v. Commissioner Social Sec. Admin., 648 F.3d 721 (9th Cir. 2011). of That regulation requires the ALJ to follow a special functional The ALJ must determine whether the limitation for four functional areas, Keyser 19 20 C. The ALJ Applied More Than A De Minimis Standard At Step-Two 21 22 The ALJ erred in concluding that Plaintiff’s mental 23 impairments do not satisfy the step-two de minimis test. 24 the medical evidence, including both the treating and consultative 25 doctors' 26 Plaintiff's mental impairment satisfied a de minimis standard at 27 step-two. opinions concerning Plaintiff's 28 8 mental Given impairments, 1 1. The Treating Physicians’ Opinions Are Consistent With The 2 Medical Record And Support A Finding Of Severe Mental 3 Impairments 4 Plaintiff’s mental impairments are sufficient to satisfy the 5 6 step-two de minimis test for severity. 7 treatment appeared to begin in 2014. 8 record indicates that Plaintiff was diagnosed with major depressive 9 disorder and anxiety. (Id.). Plaintiff’s mental health (AR 154, 265-73, 314). The The ALJ, however, found the opinions 10 of both Plaintiff’s treating physicians to be inconsistent with 11 the medical record and subsequently determined Plaintiff’s mental 12 impairments nonsevere. 13 weight to either treating physician’s opinion, as their opinions 14 have substantial support in the record. (AR 22-23). The ALJ erred by giving little 15 16 After two months of care, treating physician Dr. Sofia Vaisman 17 diagnosed Plaintiff with “anxiety [and] depression” and described 18 her as “disabled” on July 7, 2014. (AR 265-73). Over the following 19 fourteen months, Dr. Vaisman consistently affirmed Plaintiff's 20 anxiety and depression diagnosis. (AR 268, 377, 383, 388, 372, 393, 21 368, 402). 22 on Plaintiff’s memory, concentration, and ability to sleep. (Id.). 23 On six separate occasions, Dr. Vaisman recommended that Plaintiff 24 continue receiving medication and therapy, and receive “totally 25 disabled” status. 26 was 27 Abilify, Trazodone, Cymbalta, Lexapro and Xanax. 28 372, 377, 379, 383). Dr. Vaisman also noted the disorders’ negative effects regularly (Id.) While under Dr. Viasman’s care, Plaintiff prescribed multiple 9 antidepressants, including (AR 356, 368, 1 Dr. Karina Shulman began treating Plaintiff on October 8, 2 2014. (AR 314). 3 initial assessment and assigned a Global Assessment of Functioning 4 (“GAF”) 5 depressive 6 doctor relationship, Dr. Shulman continued to report numerous signs 7 consistent with Plaintiff’s major depressive disorder. score On her initial intake, Dr. Shulman performed an of 48, disorder.4 representing (AR 308). serious symptoms Throughout their of major patient- 8 9 On October 8, 2014, Plaintiff was described as depressed and 10 tearful. 11 sad and tearful. 12 mental assessment for work-related activities, she determined that 13 Plaintiff had poor ability to follow work rules, relate to co- 14 workers, interact with supervisors, deal with work stresses, and 15 maintain attention. 16 one’s “ability to function in [an] area is seriously limited, but 17 not precluded.” 18 as irritable, anxious and depressed. 19 Plaintiff was described as anxious and depressed. 20 August 19, 2015, Dr. Karina summarily reported that Plaintiff 21 continues to suffer from “major depressive disorder and receives 22 medication 23 Plaintiff “remains very depressed, has low energy, lack of interest 24 and lack of desire for any social interactions.” 25 4 26 27 28 (Id.) On November 3, 2014, Plaintiff was described as (AR 298). On November 18, 2015, in Dr. Shulman’s (AR 339). (Id.). treatment.” The assessment defined “poor” as On June 24, 2015, Plaintiff as described (AR 314). (AR 331). Dr. On August 8, 2015, (AR 329). Shulman stated On that (Id.). A GAF score of 48 is indicative of “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social occupational, or school functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders Text Revision (“DSM”), 34 (4th ed. 2000). 10 1 In sum, the Administrative Record and the treating doctors' 2 opinions reveal significant mental health symptoms and treatment, 3 including multiple prescriptions for mental health care. 4 evidence is sufficient to meet the de minimis standard at step-two 5 and should have resulted in a step-two finding of a severe mental 6 impairment. This 7 2. The State Agency Consultants’ Opinions Are Consistent With 8 9 A Severe Mental Impairment 10 11 The opinions of Maged Botros, M.D., an examining State agency 12 psychiatric consultant, and F.L. Williams, M.D., a non-examining 13 State agency consultant, further support a finding of a severe 14 mental impairment at step-two. 15 reported 16 constricted, and congruent with mood” and diagnosed Plaintiff with 17 “Depression, [Not Otherwise Specified].” 18 Botros also noted that Plaintiff’s psychosocial stressors regarding 19 her occupation, education, housing, and access to healthcare were 20 “all in moderate degree.” 21 Plaintiff a GAF score of 51-60. 22 Dr. Botros’ GAF score was representative of only mild symptoms, 23 however 51-60 GAF score actually indicates moderate symptoms.5 This that Plaintiff’s On November 3, 2014, Dr. Botros “affect (Id.). was dysphoric, tearful, (AR 295, 297-98). Dr. Furthermore, Dr. Botros gave (AR 299). The ALJ stated that 24 25 26 27 28 A GAF score of 51-60 is indicative of “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” Diagnostic and Statistical Manual of Mental Disorders Text Revision (“DSM”), 34 (4th ed. 2000). 5 11 1 2 evidence, therefore, offers further support of finding a severe mental impairment at step-two. 3 4 VII. 5 CONCLUSION 6 7 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 8 the decision of the Commissioner and REMANDING this matter for 9 further proceedings consistent with this decision. IT IS FURTHER 10 ORDERED that the Clerk of the Court serve copies of this Order and 11 the Judgment on counsel for both parties. 12 13 DATED: July 10, 2018 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 THIS OPINION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 18 19 20 21 22 23 24 25 26 27 28 12
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