Myra Lin Gates v. Carolyn W Colvin Acting Commissioner Social Security, No. 5:2016cv00049 - Document 32 (C.D. Cal. 2017)

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Myra Lin Gates v. Carolyn W Colvin Acting Commissioner Social Security Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MYRA LIN GATES, 12 Case No. ED CV 16-00049 AFM Plaintiff, 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 16 Defendant. 17 18 19 I. 20 BACKGROUND 21 Plaintiff Myra Lin Gates filed her application for disability benefits under 22 Title II of the Social Security Act on August 29, 2011 alleging a disability 23 beginning May 15, 2000. After denial on initial review and on reconsideration, a 24 hearing took place before an Administrative Law Judge (ALJ) on August 21, 2012. 25 In a written decision dated January 17, 2013, the ALJ found that Plaintiff was not 26 under a disability within the meaning of the Social Security Act from May 15, 2000 27 through the date of last insured. The Appeals Council declined to set aside the 28 ALJ’s unfavorable decision in a notice dated March 18, 2014. Plaintiff filed a 1 Complaint herein on January 8, 2016, seeking review of the Commissioner’s denial 2 of her application for benefits. 3 In accordance with the Court’s case management order, Plaintiff filed a 4 memorandum in support of the complaint on September 6, 2016 (“Pl. Mem.”) and 5 the Commissioner filed a memorandum in support of her answer on March 8, 2017 6 (“Def. Mem.”). Plaintiff did not file a Reply. Thus, this matter now is ready for 7 decision.1 8 II. 9 DISPUTED ISSUE 10 11 As reflected in the parties’ memoranda, the sole disputed issue that Plaintiff 12 has raised is whether the ALJ erred in failing to include the mild mental limitation 13 that he found Plaintiff to suffer from in his hypothetical to the vocational expert 14 (VE). 15 16 III. 17 STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 19 determine whether the Commissioner’s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. See Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 22 evidence means “more than a mere scintilla” but less than a preponderance. See 23 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 24 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 25 26 27 28 1 As the Court advised the parties in its case management order, the decision in this case is being made on the basis of the pleadings, the administrative record (“AR”), the parties’ memoranda in support of their pleadings. 2 1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 2 402 U.S. at 401. This Court must review the record as a whole, weighing both the 3 evidence that supports and the evidence that detracts from the Commissioner’s 4 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 5 than one rational interpretation, the Commissioner’s decision must be upheld. See 6 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 7 8 IV. 9 FIVE-STEP EVALUATION PROCESS 10 The Commissioner (or ALJ) follows a five-step sequential evaluation process 11 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 12 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 13 In the first step, the Commissioner must determine whether the claimant is 14 currently engaged in substantial gainful activity; if so, the claimant is not disabled 15 and the claim is denied. Id. If the claimant is not currently engaged in substantial 16 gainful activity, the second step requires the Commissioner to determine whether 17 the claimant has a “severe” impairment or combination of impairments significantly 18 limiting his ability to do basic work activities; if not, a finding of nondisability is 19 made and the claim is denied. Id. If the claimant has a “severe” impairment or 20 combination of impairments, the third step requires the Commissioner to determine 21 whether the impairment or combination of impairments meets or equals an 22 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 23 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 24 are awarded. Id. If the claimant’s impairment or combination of impairments does 25 not meet or equal an impairment in the Listing, the fourth step requires the 26 Commissioner to determine whether the claimant has sufficient “residual functional 27 capacity” to perform his past work; if so, the claimant is not disabled and the claim 28 is denied. Id. The claimant has the burden of proving that he is unable to perform 3 1 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 2 claimant meets this burden, a prima facie case of disability is established. Id. The 3 Commissioner then bears the burden of establishing that the claimant is not 4 disabled, because he can perform other substantial gainful work available in the 5 national economy. Id. The determination of this issue comprises the fifth and final 6 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 7 828 n.5; Drouin, 966 F.2d at 1257. 8 V. 9 THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 10 11 At step one, the ALJ found that Plaintiff met the insured status requirements 12 of the Social Security Act on December 31, 2005 and had not engaged in 13 substantial gainful activity from the alleged onset date of May 15, 2000 through the 14 date last insured. (AR 22.) At step two, the ALJ found that Plaintiff had the 15 following severe impairments: chronic pain syndrome secondary to status-post 16 1988 crush injury to left femur; and deep vein thrombosis. (AR 22-24.) At step 17 three, the ALJ found that Plaintiff did not have an impairment or combination of 18 impairments that meets or medically equals the severity of one of the listed 19 impairments. (AR 24.) At step four, the ALJ found that Plaintiff had the residual 20 functional capacity (RFC) to perform the full range of sedentary work. (AR 24-30.) 21 Finally, at step five, the ALJ found that through the date last insured, Plaintiff was 22 capable of performing past relevant work as a budget analyst. 23 Accordingly, the ALJ concluded that Plaintiff was not under a disability at any time 24 from May 15, 2000, the alleged onset date, through December 31, 2005, the date 25 last insured. (AR 31.) 26 /// 27 /// 28 /// 4 (AR 30-31.) 1 VI. 2 DISCUSSION 3 In assessing Plaintiff’s impairments, the ALJ made the following finding: 4 “[Plaintiff’s] medically determinable mental impairment of anxiety disorder did not 5 cause more than minimal limitation in [Plaintiff’s] ability to perform basic mental 6 work activities and was therefore nonsevere.” (AR 23.) 7 considered Plaintiff’s social functioning and concluded, “[i]n this area, [Plaintiff] 8 had mild limitation.” (AR 23.) The ALJ further referred to the opinion of treating 9 physician Dr. Thomsen, who “opined that [Plaintiff’s] anxiety was ‘definitely more 10 situational related.’” (AR 23, citing AR 933). In the RFC (and the hypothetical to 11 the VE), however, the ALJ did not include any mental limitation. (AR 24, 57.) 12 Relying on Hutton v. Astrue, 491 Fed. Appx. 850 (9th Cir. 2012) and 20 C.F.R. 13 § 404.1545(e), Plaintiff contends that the ALJ erred 14 including the mild mental impairment in the RFC and the hypothetical presented to 15 the VE. (Pl. Br. at 5.) Plaintiff further contends that even mild impairment in 16 Plaintiff’s ability to deal with social situations could have a negative impact on her 17 ability to perform her prior relevant work as budget analyst. (Id. at 6.) The ALJ specifically as a matter of law by not 18 In assessing this issue, the Court finds persuasive the Ninth Circuit’s 19 unpublished decision in Hutton. There, at step two, the ALJ found that the claimant 20 Hutton suffered from non-severe PTSD. 21 “excluded Hutton’s PTSD from consideration” because the ALJ found that Hutton 22 was not credible. 491 Fed. Appx. at 850. Relying on 20 C.F.R. § 404.1545(e), the 23 Ninth Circuit found this exclusion to be legal error: “while the ALJ was free to 24 reject Hutton’s testimony as not credible, there was no reason for the ALJ to 25 disregard his own finding that Hutton’s nonsevere PTSD caused some ‘mild’ 26 limitations in the areas of concentration, persistence or pace.” Id. at 851. In determining the RFC, the ALJ 27 The ALJ here followed a similar course to error. After finding that Plaintiff 28 had a nonsevere mental impairment regarding social functioning, the ALJ discussed 5 1 this impairment only in connection with his adverse credibility finding. (AR 26.) 2 In that regard, the ALJ reviewed what Plaintiff had told treating providers 3 concerning her anxiety and compared those statements to the claim of a disabling 4 impairment. The ALJ found that Plaintiff’s testimony about her limitations was not 5 credible because it was inconsistent with, inter alia, her unguarded statements to 6 treating providers. (AR 27.) As in Hutton, however, when the ALJ went on to 7 assess the medical evidence of record in order to determine the RFC, he did not 8 consider Plaintiff’s nonsevere limitation in social functioning. 9 Circuit’s held in Hutton, this was legal error. The ALJ could reject Plaintiff’s 10 testimony as not credible, but did that not permit him to disregard his own finding 11 that Plaintiff’s anxiety disorder caused a mild impairment in social functioning. As the Ninth 12 The district court cases cited by Plaintiff are consistent with this result. For 13 example, in Kramer v. Astrue, 2013 WL 256790 at *2-3 (C.D. Cal. Jan. 22, 3013), 14 the court found reversible error in the ALJ’s failure to include mild mental 15 limitations in the assessment of the RFC. See also Smith v. Colvin, 2015 WL 16 9023486 at *8-9 (N.D. Cal. Dec. 16, 2015); Reddick v. Colvin, 2016 WL 3854580 17 at *4 (S.D. Cal. July 15, 2016). Another recent decision, Medlock v. Colvin, 2016 18 WL 6137399 at *5 (C.D. Cal. Oct. 20, 2016), focuses on the language in 20 C.F.R. 19 § 404.1545(e) that requires ALJs to “consider” the limiting effects of all 20 impairments in determining the RFC. According to Medlock, the “consideration” 21 requirement is met if the ALJ “actually reviews the record and specifies reasons 22 supported by substantial evidence for not including the non-severe impairment. . . .” 23 Id. 24 language. . . .” Id. It is not sufficient, however, for the ALJ to merely “rely on boilerplate 25 Here, the ALJ’s decision does not reflect an actual consideration and 26 reasoned determination as to why the mild social functioning limitation was not 27 included in the RFC. The Commissioner concedes that the decision does not show 28 that the ALJ clearly and explicitly considered Plaintiff’s mild mental disorder as 6 1 part of the RFC determination, but asks the Court to “infer” that the ALJ did so. 2 (See Def. Mem. at 5.) The Court declines this invitation because the suggested 3 approach of finding the required consideration by “inference” is inconsistent with 4 Hutton, the subsequent district court decisions, and the regulation, and it would 5 encourage use of boilerplate language as opposed to actual assessment of all 6 impairments in arriving at an RFC.1 7 The Commissioner also cites Hoopai v. Astrue, 499 F.3d 1071 (9th Cir. 8 2007), but that case discussed a different issue: whether satisfaction of the step two 9 threshold of severity is dispositive of the step five question whether the claimant 10 can perform work in the economy. 499 F.3d at 1076. It does not address whether 11 an ALJ must consider mild mental limitations in the RFC assessment. See Kramer, 12 2013 WL 256790 at *3. 13 Commissioner at pages 3 and 4 of its brief primarily found that the failure to 14 include mild mental limitations in the hypothetical to the VE to be harmless under 15 the facts of those cases.2 And the three district court cases cited by the 16 Here, on the other hand, the error was not “‘inconsequential to the ultimate 17 nondisability determination,’” and was not harmless. See Molina v. Astrue, 674 18 F.3d 1104, 1115 (9th Cir. 2012). On the present record, it cannot be determined 19 what would have happened had the ALJ considered Plaintiff’s mild social 20 functioning limitation when assessing the RFC or how the VE would have testified 21 had that limitation been include in the hypothetical question. See Allen v. Sullivan, 22 880 F.2d 1200, 1200-01 (11th Cir. 1989). In addition, the failure by the ALJ to 23 1 24 25 26 27 28 The ALJ’s decision appears to include such boilerplate language at AR 24, but the Commissioner does not contend this satisfied the obligation to consider all limitations (including mild mental limitations), and the Court finds that it does not because it does not reflect actual review and analysis and does not specify reasons for not including the nonsevere impairment. 2 McDowell v. Colvin, 2013 WL 5951947 (C.D. Cal. Nov. 6, 2013); Hall v. Astrue, 2010 WL 1531209 (C.D. Cal. Apr. 15, 2010); Edior v. Astrue, 2010 WL 797175 (C.D. Cal. Mar. 5, 2010). 7 1 consider Plaintiff’s mild mental restriction in assessing the RFC and in questioning 2 the VE prevents a meaningful review of the path taken by the agency in reaching its 3 decision. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015). 4 5 VII. 6 DECISION TO REMAND 7 The law is well established that the decision whether to remand for further 8 proceedings or simply to award benefits is within the discretion of the Court. See, 9 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 10 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 11 1981). Before a case may be remanded for an immediate award of benefits, three 12 requirements must be met: “(1) the record has been fully developed and further 13 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 14 provide legally sufficient reasons for rejecting evidence, whether claimant 15 testimony or medical opinion; and (3) if the improperly discredited evidence were 16 credited as true, the ALJ would be required to find the claimant disabled on 17 remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); see also Brown- 18 Hunter, 806 F.3d at 495. If the record is “uncertain and ambiguous, the proper 19 approach is to remand the case to the agency” for further proceedings. 20 Treichler, 775 F.3d at 1105. In the present case, further proceedings would be 21 useful to resolve conflicts, gaps, and ambiguities in the record and the ALJ’s 22 decision. Id. at 1103-04 (in evaluating whether further administrative proceedings 23 would be useful, the reviewing court should consider “whether the record as a 24 whole is free from conflicts, ambiguities, or gaps, whether all factual issues have 25 been resolved, and whether the claimant’s entitlement to benefits is clear under the 26 applicable legal rules”); Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014).3 27 28 3 It is not the Court’s intention to limit the scope of the remand. 8 See * 1 * * * 2 IT THEREFORE IS ORDERED that Judgment be entered reversing the 3 decision of the Commissioner of Social Security and remanding this matter for 4 further administrative proceedings consistent with this Order. 5 6 7 8 9 DATED: May 16, 2017 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9