Kathleen Dalli v. Nancy A. Berryhill, No. 5:2017cv02437 - 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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Kathleen Dalli 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 KATHLEEN DALLI, Plaintiff, 12 v. 13 14 15 CASE NO. EDCV 17-2437 SS MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Kathleen Dalli (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Acting Commissioner of Social Security 23 (the 24 Supplemental Security 25 pursuant 28 26 undersigned United States Magistrate Judge. 27 For the reasons stated below, the decision of the Commissioner is “Commissioner” to or “Agency”) Income U.S.C. denying (“SSI”). § 636(c) to her The the application parties for consented jurisdiction of the (Dkt. Nos. 11-13). 28 Dockets.Justia.com 1 REVERSED, and this case is REMANDED for further administrative 2 proceedings consistent with 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 benefits, an 20 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 21 C.F.R. §§ 404.1520, 416.920. 19 To decide if a claimant is entitled to 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 vocational expert (“VE”) or by 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 reference to the Medical-Vocational Guidelines appearing in 20 2 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 3 grids”). 4 When a claimant has both exertional (strength-related) and non- 5 exertional limitations, the Grids are inapplicable and the ALJ must 6 take the testimony of a VE. 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 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 and concluded that Plaintiff was not disabled within the meaning 15 of the Act. 16 has not engaged in substantial gainful activity since November 9, 17 2013, the application date. 18 that Plaintiff’s obesity, hypertension, and remote history of 19 bilateral carpal tunnel release in 2003 are medically determinable 20 impairments. 21 “does not have an impairment or combination of impairments that 22 has significantly limited (or is expected to significantly limit) 23 the 24 consecutive months; therefore [Plaintiff] does not have a severe 25 impairment 26 Accordingly, the ALJ did not conduct any of the additional analysis 27 of the five-step evaluation. ability (AR 18-25). (AR 20). to or At step one, the ALJ found that Plaintiff (AR 20). At step two, the ALJ found Nevertheless, the ALJ found that Plaintiff perform basic combination work-related of activities impairments.” (AR for 12 20-24). Furthermore, the ALJ concluded that 28 4 1 Plaintiff has not been under a disability, as defined by the Act, 2 since November 9, 2013, the application date. (AR 24-25). 3 4 IV. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 8 Commissioner’s decision to deny benefits. 9 aside the Commissioner’s denial of benefits when the ALJ’s findings 10 are based on legal error or are not supported by substantial 11 evidence in the record as a whole.” 12 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 13 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 14 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 15 16 “Substantial evidence is more than a scintilla, but less than 17 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 18 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 19 evidence which a reasonable person might accept as adequate to 20 support a conclusion.” 21 evidence supports a finding, the court must “‘consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 24 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 28 5 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 V. 5 DISCUSSION 6 7 Plaintiff contends that the ALJ erred at step two by finding 8 that her carpal tunnel syndrome was a non-severe impairment. 9 No. 19 at 4-8). (Dkt. The Court agrees. 10 11 By its own terms, the evaluation at step two is a de minimis 12 test intended to weed out the most minor of impairments. 13 v. Yuckert, 482 U.S. 137, 153–54 (1987) (O’Connor, J., concurring); 14 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have 15 defined the step-two inquiry as a de minimis screening device to 16 dispose of groundless claims.”). 17 must 18 impairments on her ability to function, without regard to whether 19 each alone was sufficiently severe.” 20 (citation omitted); see SSR 85-28. 21 “only if the evidence establishes a slight abnormality that has 22 not more than a minimal effect on an individual’s ability to work.” 23 Smolen, 80 F.3d at 1290 (citation omitted). 24 Court’s] normal standard of review to the requirements of step two, 25 [the Court] must determine whether the ALJ had substantial evidence 26 to 27 [Plaintiff] consider find that the the did combined medical not have Further, at step two, “the ALJ effect of all 6 the claimant’s Smolen, 80 F.3d at 1290 “Thus, applying [the clearly medically 28 of An impairment is not severe evidence a See Bowen established severe impairment that or 1 combination of impairments.” 2 (9th Cir. 2005). Webb v. Barnhart, 433 F.3d 683, 687 3 According to the Commissioner’s regulations, “[a]n impairment 4 5 or 6 significantly limit your physical or mental ability to do basic 7 work activities.” 8 work activities are abilities and aptitudes necessary to do most 9 jobs, including, for example, walking, standing, sitting, lifting, combination of impairments is not severe if it does 20 C.F.R. §§ 404.1522(a), 416.922(a). not “Basic 10 pushing, pulling, reaching, carrying or handling.” 11 at 12 416.922(b); 13 emphasized that “[g]reat care should be exercised in applying the 14 not severe impairment concept.” 15 if the ALJ is “unable to determine clearly the effect of an 16 impairment 17 ability to do basic work activities, the sequential evaluation 18 process should not end with the not severe evaluation step.” 19 (emphasis added). 20 should continue through steps three, four, and five to “evaluate 21 the individual’s ability to do past work, or to do other work based 22 on the consideration of age, education, and prior work experience.” 23 Id. 1290 (citation SSR or omitted); 85-28. combination see 20 C.F.R. Nevertheless, of the Smolen, 80 F.3d §§ Commissioner SSR 85-28, at *4. impairments on 404.1522(b), the has Accordingly, individual’s Id. Instead, the sequential evaluation process 24 25 Here, the ALJ applied more than a de minimis test at step two 26 when she determined that Plaintiff’s carpal tunnel syndrome is non- 27 severe. 28 medical evidence regarding the effects of Plaintiff’s carpal tunnel To reach this non-severity finding, the ALJ overlooked 7 1 syndrome. Despite undergoing bilateral carpal tunnel release in 2 2003, Plaintiff consistently complained during the relevant time 3 frame of continuing pain, numbness, and tingling in her hands. 4 297-98, 307-08, 314-19, 320-22, 329). 5 suggested that Plaintiff is malingering. 6 the 7 syndrome and pain, but deferred to the appropriate specialist for 8 further analysis. 9 consultative examiner observed positive Phalen’s and Tinel’s signs psychiatric consultative (AR 301). examiner (AR Her physicians have not On February 10, 2014, assessed carpal tunnel On February 14, 2014, the orthopedic 10 bilaterally.1 11 syndrome status post bilateral carpal tunnel releases and opined 12 that Plaintiff is limited to performing postural activities and 13 manipulative 14 frequent basis. 15 treating physician noted bilateral hand numbness and weakness. (AR 16 314, 17 Phalen’s and Tinel’s signs. 18 bilateral carpal tunnel syndrome with chronic, uncontrolled pain. 19 (AR 315). 20 pain in Plaintiff’s wrists, bilaterally, assessed carpal tunnel 21 syndrome, and referred her to orthopedics. 316). (AR 309). activities In The CE diagnosed bilateral carpal tunnel with (AR 311). June 2014, her upper extremities on only a In April and June 2014, Plaintiff’s Plaintiff presented with positive (AR 315). Her physician assessed In February 2016, Plaintiff’s treating physician noted (AR 320-22). In April 22 23 24 25 26 27 28 “Phalen’s maneuver is a diagnostic test for carpal tunnel syndrome.” <https://en.wikipedia.org/wiki/Phalen_maneuver> (last visited Aug. 22, 2018). “Tinel’s sign is a way to detect irritated nerves. . . . [I]n carpal tunnel syndrome where the median nerve is compressed at the wrist, Tinel’s sign is often ‘positive’ causing tingling in the thumb, index, middle finger and the radial half of the fourth digit.” <https://en.wikipedia.org/wiki/ Tinel%27s_sign> (last visited Aug. 22, 2018). 1 8 1 2016, Plaintiff presented with paresthesia.2 2 physician assessed limb pain and paresthesia. 3 electromyogram (EMG) and nerve conduction study was performed, 4 which revealed mild bilateral median motor and sensory neuropathies 5 at the wrists and evidence of mild chronic denervation. 6 34). (AR 329). Her (AR 330). An (AR 332- 7 8 The Commissioner contends that the ALJ properly relied on the 9 State agency physicians’ assessments, who found that Plaintiff has 10 no severe impairments. 11 64-72). 12 evaluations in February and April 2014, prior to the medical 13 evidence from Plaintiff’s treating physicians, as discussed above, 14 being added to the medical record. 15 to give “great weight” to the State agency consultants’ opinions 16 was error because their opinions were based on an incomplete 17 record. 18 (“The ALJ always has a special duty to fully and fairly develop 19 the 20 considered even when the claimant is represented by counsel.”) 21 (citation and ellipses omitted). However, the (Dkt. No. 20 at 2-3); (see AR 24, 53-61, State agency consultants made their Therefore, the ALJ’s decision See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) record and to assure that the claimant’s interests are 22 23 24 25 26 27 28 “Paresthesia refers to a burning or prickling sensation that is usually felt in the hands, arms, legs, or feet, but can also occur in other parts of the body. . . . Chronic paresthesia is often a symptom of an underlying neurological disease or traumatic nerve damage.” <https://www.ninds.nih.gov/Disorders/AllDisorders/Paresthesia-Information-Page> (last visited Aug. 22, 2108). 2 9 1 Because a step-two evaluation is to dispose of “groundless 2 claims,” and the evidence here established that Plaintiff suffered 3 from significant nerve damage in her hands, the ALJ erred by finding 4 Plaintiff’s carpal tunnel syndrome to be “non-severe.” 5 not the “total absence of objective evidence of severe medical 6 impairment” that would permit us to affirm 7 disability at step two.” 8 two determination “because there was not substantial evidence to 9 show that Webb’s claim was ‘groundless’ ”). This is “a finding of no Webb, 433 F.3d at 688 (reversing a step- The evidence in the 10 record was sufficient for the ALJ to conclude that Plaintiff’s 11 carpal tunnel syndrome was a severe impairment at step two under 12 the de minimis test. 13 For the foregoing reasons, the matter is remanded for further 14 15 proceedings.3 16 tunnel syndrome as a severe impairment at step-two and include 17 limitations imposed by Plaintiff’s carpal tunnel syndrome in the 18 ALJ’s overall evaluation of Plaintiff. 19 impact of Plaintiff’s carpal tunnel syndrome on her RFC. On remand, the ALJ must evaluate Plaintiff’s carpal The ALJ must consider the 20 21 22 23 24 25 26 27 28 3 Plaintiff also argues that ALJ improperly rejected her subjective symptom testimony. (Dkt. No. 19 at 8-11). However, it is unnecessary to reach Plaintiff’s arguments on this ground, as the matter is remanded for the alternative reasons discussed at length in this Order. 10 1 VI. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 5 the decision of the Commissioner and REMANDING this matter for 6 further proceedings consistent with this decision. 7 ORDERED that the Clerk of the Court serve copies of this Order and 8 the Judgment on counsel for both parties. IT IS FURTHER 9 10 DATED: August 22, 2018 11 12 13 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 18 19 20 21 22 23 24 25 26 27 28 11 IN WESTLAW,
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