(SS) Brown-Borges v. Commissioner of Social Security, No. 2:2016cv02119 - Document 24 (E.D. Cal. 2018)

Court Description: MEMORANDUM, OPINION and ORDER; signed by Magistrate Judge Craig M. Kellison on 3/29/18, ORDERING that Plaintiff's 19 motion for summary judgment is DENIED. Defendant's 23 cross-motion for summary judgment is GRANTED. The Clerk is directed to enter judgment and close this file. CASE CLOSED (Kastilahn, A)
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(SS) Brown-Borges v. Commissioner of Social Security Doc. 24 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RHOANNA LYN BROWN-BORGES, 12 Plaintiff, 13 14 No. 2:16-CV-2119-CMK vs. MEMORANDUM OPINION AND ORDER COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 / 17 18 Plaintiff, who is proceeding with retained counsel, brings this action under 19 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. 20 Pursuant to the written consent of all parties, this case is before the undersigned as the presiding 21 judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending 22 before the court are plaintiff’s motion for summary judgment (Doc. 19) and defendant’s cross- 23 motion for summary judgment (Doc. 23). 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 2 I. PROCEDURAL HISTORY Plaintiff applied for social security benefits on August 29, 2012. In the 3 application, plaintiff claims that disability began on October 29, 2008. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, plaintiff requested an administrative 5 hearing, which was held on July 10, 2014, before Administrative Law Judge (“ALJ”) L. Kalei 6 Fong. In a December 19, 2014, decision, the ALJ concluded that plaintiff is not disabled based 7 on the following relevant findings: 8 1. The claimant has the following severe impairment(s): degenerative disc disease of the lumbar spine with radiculopathy; 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations; 3. The claimant has the following residual functional capacity: the claimant can perform light work; and 4. Considering the claimant’s age, education, work experience, residual functional capacity, and the Medical-Vocational Guidelines, rule 202.21, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 9 10 11 12 13 14 15 On April 29, 2016, the Appeals Council granted review. In a July 1, 2016, 16 decision, the Appeals Council adopted the ALJ’s disability decision. In particular, the Appeals 17 Council adopted the ALJ’s credibility finding. The Appeals Council, however, did not adopt the 18 ALJ’s conclusion that plaintiff’s mental impairment of depression and anxiety moderately impact 19 her activities of daily living. In this regard, the Appeals Council stated: 20 21 22 23 24 25 26 . . .As the hearing decision properly notes (HD p.5/12), the claimant herself reported that she is independent in all activities of daily living and industrial activities of daily living (Ex. 3F/1). Moreover, the claimant has attributed any difficulties with activities of daily living to side effects from narcotic pain medication taken to relieve her physical pain. The claimant’s mental status examinations revealed that she had no intellectual deficits or short-term memory deficits and her judgment and insight were intact. The claimant has only mild limitations regarding maintaining concentration, persistence and pace. Therefore, the evidence in the record indicates that the claimant’s mental impairment mildly restricts activities of daily living; presents mild difficulties in maintaining social functioning, results in mild deficiencies in concentration, persistence or pace; and has produced no episodes of deterioration or decompensation in work or work2 1 2 3 4 5 6 like settings. The Appeals Council notes that not only did the record not support the decision finding of moderate functional limitations in activities of daily living, the hearing decision did not indicate any residual functional limitations resulting from a moderate limitation in activities of daily living. The mild limitations in all functional areas and the non-severe mental impairments conclusions are also consistent with the conclusions of the state agency medical examiners and the record as a whole. The Appeals Council made the following additional relevant findings and conclusions: 1. The claimant has the severe impairment of degenerative disc disease of the lumbar spine with radiculopathy; 2. The claimant has the residual functional capacity to perform light work; and 3. Applying Grid rule 202.21, plaintiff is not disabled. 7 8 9 10 11 II. STANDARD OF REVIEW 12 The court reviews the Commissioner’s final decision to determine whether it is: 13 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 14 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 15 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 16 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to 17 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 18 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 19 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 20 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s 21 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 22 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 23 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 24 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 25 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 26 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 3 1 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 2 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 3 Cir. 1988). 4 5 III. DISCUSSION 6 In her motion for summary judgment, plaintiff argues: (1) the Appeals Council 7 erred by applying Grid rule 202.21; (2) the Appeals Council erred by adopting the ALJ’s 8 credibility and residual functional capacity assessments without considering the side effects of 9 medication; and (3) the Appeals Council erred by accepting the ALJ’s improper assessment of 10 11 plaintiff’s mental impairments as non-severe. A. Severity of Plaintiff’s Mental Impairment 12 In order to be entitled to benefits, the plaintiff must have an impairment severe 13 enough to significantly limit the physical or mental ability to do basic work activities. See 20 14 C.F.R. §§ 404.1520(c), 416.920(c).1 In determining whether a claimant’s alleged impairment is 15 sufficiently severe to limit the ability to work, the Commissioner must consider the combined 16 effect of all impairments on the ability to function, without regard to whether each impairment 17 alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 18 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, 19 or combination of impairments, can only be found to be non-severe if the evidence establishes a 20 slight abnormality that has no more than a minimal effect on an individual’s ability to work. See 21 Social Security Ruling (“SSR”) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 22 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the 23 24 25 26 1 Basic work activities include: (1) walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. See 20 C.F.R. §§ 404.1521, 416.921. 4 1 impairment by providing medical evidence consisting of signs, symptoms, and laboratory 2 findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff’s own statement of symptoms alone 3 is insufficient. See id. 4 With respect to the severity of plaintiff’s mental impairment, the ALJ stated: 5 The claimant further alleges that her ability to work is impaired due to depression, anxiety. . . . In regards to the mental allegations, treatment records reveal that the claimant did not report having problems with depression to treating sources (Ex. 5F/4). She reported that she was doing well and that medication worked very well (Ex. 5F/5, 13). She told treating sources that Xanax helped with her nerves (Ex. 5F/11). Mental status examinations generally revealed mild findings such as the claimant was fully oriented. Her mood was appropriate/normal. Her affect was normal. Her speech was normal quality, quantity, and rate. There were no intellectual deficits or short-term memory deficits. Her judgment and insight were intact (Ex. 4F; 6F; 7F; 9F). Treating sources noted that the claimant was cognating well (Ex. 6F/32, 37, 41). She denied problems with anxiety, agitation, depression, suicidal ideation, or mood or intellect disturbances (Ex. 4F; 6F). 6 7 8 9 10 11 12 13 14 15 16 On January 30, 2013, state agency psychiatrist L. Colsky, M.D., opined that there was no medically determinable mental impairment (Ex. 1A). On September 6, 2013, state agency psychologist Timothy Schumacher, Ph.D., opined that the claimant’s mental condition was nonsevere (Ex. 3A). The undersigned gives Dr. Colsky’s opinion little weight as the record reveals diagnosis of depression by an acceptable medical source. However, great weight is given to Dr. Schumacher’s opinion as it is consistent with the claimant’s discussed clinical history showing that it is not as severe as alleged. 17 18 In finding plaintiff’s mental impairment to be not severe, the ALJ considered plaintiff’s abilities 19 in the areas of activities of: (1) daily living; (2) social functioning; (3) concentration, persistence, 20 and pace; and (4) episodes of decompensation. 21 Plaintiff argues that the Appeals Council and ALJ erred by failing to make any 22 findings regarding plaintiff’s diagnosed “adjustment disorder with mixed anxiety and depressed 23 mood” or the side-effects of medication. As to the latter, which is not a mental impairment, the 24 court does not agree. As to adjustment disorder, while plaintiff notes various instances where 25 treating sources have diagnosed this impairment, plaintiff has not pointed to any evidence of 26 record beyond a diagnosis. Specifically, plaintiff does not cite any evidence showing that her 5 1 adjustment disorder has more than a minimal effect on her ability to function. As the ALJ noted, 2 mental status examinations were unremarkable, plaintiff denied any problems with anxiety, 3 agitation, depression, suicidal ideation, or mood or intellect disturbances, and Dr. Schumacher 4 opined that plaintiff does not have any severe mental impairment. 5 B. Credibility 6 The Commissioner determines whether a disability applicant is credible, and the 7 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 8 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 9 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 10 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 11 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 12 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 13 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 14 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 15 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 16 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 17 If there is objective medical evidence of an underlying impairment, the 18 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 19 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 20 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 21 22 23 24 25 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 26 6 1 The Commissioner may, however, consider the nature of the symptoms alleged, 2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 7 physician and third-party testimony about the nature, severity, and effect of symptoms. See 8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 9 claimant cooperated during physical examinations or provided conflicting statements concerning 10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 11 claimant testifies as to symptoms greater than would normally be produced by a given 12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 14 Regarding reliance on a claimant’s daily activities to find testimony of disabling 15 pain not credible, the Social Security Act does not require that disability claimants be utterly 16 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 17 repeatedly held that the 18 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 19 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 20 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 21 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 22 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 24 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 25 activities are not easily transferable to what may be the more grueling environment of the 26 workplace, where it might be impossible to periodically rest or take medication”). Daily “. . . mere fact that a plaintiff has carried out certain daily activities . . . 7 1 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 2 his day engaged in pursuits involving the performance of physical functions that are transferable 3 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 4 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 5 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 6 As to plaintiff’s credibility, the ALJ stated: 7 The claimant alleges her ability to work is impaired due to her condition causing chronic pain, weakness, numbness, disturbed sleep, fatigue, muscle spasms, and weakness. She underwent surgery in 2008 and had some relief for five to six months after the surgery. However, the pain returned. She has pain along the left side of her body from her lower back down into her left leg. She has numbness and tingling in the distribution of the pain radiation. Currently she is taking Methadone and Percocet. She stopped taking Soma, Norco, and morphine in 2011. She also took oxycodone but stopped. Since she has reduced her pain medication, her pain level is worse. Her husband has to do all the household chores. During the hearing, the claimant alleged her pain level was a six or seven on a scale of one to 10. She alleged during the hearing that she shifted back and forth while seated due to difficulty sitting. Conservative treatment such as epidural steroid injections and trigger point injections were ineffective. She further alleges that medication causes side effects such as memory loss, stutters, and weakness. 8 9 10 11 12 13 14 15 16 The ALJ found these allegations not credible for the following reasons: 17 First, these allegations are inconsistent with the claimant’s discussed clinical history showing that the claimant’s condition is generally controlled. The claimant reported that she had been doing well to treating sources (Ex. 5F/12, 13). She told treating sources that acupuncture was helping with leg symptoms (Ex. 6F/45, 49). She reported that her sleep had improved (Ex. 6F/49, 52, 55, 58). She told treating sources that Robaxin worked and that her symptoms were alleviated by medication (Ex. 6F/86; 7F/1). She told the consultative physician that her pain is relieved by taking methadone, icing, and rest (Ex. 10F/9). Records reveal that the claimant denied forgetfulness, confusion, or other neurological symptoms (Ex. 4F). She reported no adverse medication reaction or side effects (Ex. 6F/1). 18 19 20 21 22 23 24 /// 25 /// 26 /// 8 1 The ALJ then documented the record of findings on physical examinations, which were 2 “generally mild.” The ALJ added: 3 Second, these allegations are inconsistent with medical opinions that show that the claimant is functional in spite of her condition. . . . 4 The ALJ then discussed the various medical opinions, specifically the accepted opinions of the 5 agency consultative reviewing physicians, Drs. Lockie, see CAR at Exhibits 1F and 2F, Mauro, 6 see id. at Exhibit 1A, and Nordlicht, see id. at Exhibit 3A, as well as the consultative examining 7 physicians, Drs. Littlepage, see id. at Exhibit 3F, and Ali, see id. at Exhibit 10F. These doctors 8 all opined that plaintiff has the capacity to perform activities consistent with light work. Finally, 9 the ALJ stated: 10 12 Accordingly, while the claimant may experience some pain, the weight of the evidence shows that the claimant is able to perform a range of light exertional work. [¶] Thus, the claimant’s allegations are not entirely credible. 13 Plaintiff argues that the ALJ erred by failing to “identify what portions of 11 14 plaintiff’s testimony as to her depression and anxiety were not credible. . . .” As discussed 15 above, the ALJ properly found that plaintiff does not have a severe mental impairment. 16 Therefore, it was not necessary for the ALJ to further consider plaintiff’s allegations in this 17 regard. It follows that plaintiff’s allegations of disabling mental impairments were discounted by 18 the ALJ because plaintiff does not have any severe mental impairment. Plaintiff also argues that 19 the ALJ erred by failing to consider the side effects of medication. As the ALJ noted, however, 20 plaintiff never reported any adverse side effects of medication, and plaintiff fails to identify any 21 portions of the record which indicate otherwise.2 22 23 24 25 26 2 Plaintiff cites CAR 490 as evidence that “the ALJ knew the side effects were so severe that she needed detoxification.” The cited document is a portion of a June 4, 2013, report prepared by Shishir A. Dhruva, M.D. This report, however, indicates that Dr. Dhruva recommended detoxification, not that it ever occurred. Morever, the doctor recommended detoxification from narcotic pain medications because they were not having any primary effect on plaintiff’s pain and plaintiff had become addicted, not because the medications produced undesirable side effects. 9 1 C. 2 Residual Functional Capacity Residual functional capacity is what a person “can still do despite [the 3 individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. 4 Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current 5 “physical and mental capabilities”). Thus, residual functional capacity describes a person’s 6 exertional capabilities in light of his or her limitations.3 Where there is a colorable claim of 7 mental impairment, the regulations require the ALJ to follow a special procedure. See 20 C.F.R. 8 §§ 404.1520a(a), 416.920a(a). The ALJ is required to record pertinent findings and rate the 9 degree of functional loss. See 20 C.F.R. §§ 404.1520a(b), 416.920a(b). 10 Plaintiff once again argues that the ALJ erred by failing to consider either her 11 mental impairments or the side effects of her pain medications. Again, the court finds no error 12 because plaintiff’s mental impairment is non-severe and because plaintiff has not complained of 13 the side effects of medication or produced evidence that the side effects of medication adversely 14 affect her ability to work. 15 /// 16 /// 17 /// 18 /// 19 3 20 21 22 23 24 25 26 Exertional capabilities are the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20 C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§ 404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§ 404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§ 404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. See 20 C.F.R. §§ 404.1567(e) and 416.967(e). 10 1 D. 2 Application of the Medical-Vocational Guidelines The Medical-Vocational Guidelines (“Grids”) provide a uniform conclusion about 3 disability for various combinations of age, education, previous work experience, and residual 4 functional capacity. The Grids allow the Commissioner to streamline the administrative process 5 and encourage uniform treatment of claims based on the number of jobs in the national economy 6 for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458, 7 460-62 (1983) (discussing creation and purpose of the Grids). 8 9 The Commissioner may apply the Grids in lieu of taking the testimony of a vocational expert only when the Grids accurately and completely describe the claimant’s abilities 10 and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v. 11 Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the 12 Grids if a claimant suffers from non-exertional limitations because the Grids are based on 13 exertional strength factors only.4 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). 14 “If a claimant has an impairment that limits his or her ability to work without directly affecting 15 his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered 16 by the Grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, 17 Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids 18 even when a claimant has combined exertional and non-exertional limitations, if non-exertional 19 limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d 20 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988). 21 /// 22 /// 23 /// 24 25 26 4 Non-exertional activities include mental, sensory, postural, manipulative, and environmental matters which do not directly affect the primary strength activities. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e). 11 1 In cases where the Grids are not fully applicable, the ALJ may meet his burden 2 under step five of the sequential analysis by propounding to a vocational expert hypothetical 3 questions based on medical assumptions, supported by substantial evidence, that reflect all the 4 plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, 5 where the Grids are inapplicable because plaintiff has sufficient non-exertional limitations, the 6 ALJ is required to obtain vocational expert testimony. See Burkhart v. Bowen, 587 F.2d 1335, 7 1341 (9th Cir. 1988). 8 9 Plaintiff argues that the ALJ’s finding that plaintiff can stand and/or walk for only four hours in an eight-hour day precludes application of Grid rule 202.21, which considers the 10 ability to perform light work requiring six hours of standing in an eight-hour day. See 20 C.F.R. 11 § 404.1567(b); see also SSR 83-10. Apparently conceding the error, defendant argues that a 12 four-hour stand/walk limitation nonetheless allows for sedentary work under the Grids. 13 According to defendant, whether plaintiff can stand/walk for six hours, in which case she would 14 capable of light work, or only four hours, in which case plaintiff could be capable of sedentary 15 work, the ultimate disability remains the same. 16 The court agrees. The Ninth Circuit has applied harmless error analysis in social 17 security cases in a number of contexts. For example, in Stout v. Commissioner of Social 18 Security, 454 F.3d 1050 (9th Cir. 2006), the court stated that the ALJ’s failure to consider 19 uncontradicted lay witness testimony could only be considered harmless “. . . if no reasonable 20 ALJ, when fully crediting the testimony, could have reached a different disability determination.” 21 Id. at 1056; see also Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 22 2006) (citing Stout, 454 F.3d at 1056). Similarly, in Batson v. Commissioner of Social Security, 23 359 F.3d 1190 (9th Cir. 2004), the court applied harmless error analysis to the ALJ’s failure to 24 /// 25 /// 26 /// 12 1 2 3 4 5 properly credit the claimant’s testimony. Specifically, the court held: However, in light of all the other reasons given by the ALJ for Batson’s lack of credibility and his residual functional capacity, and in light of the objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ’s decision. Any error the ALJ may have committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our view harmless and does not negate the validity of the ALJ’s ultimate conclusion that Batson’s testimony was not credible. 6 Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)). 7 8 In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the 9 claimant’s age and education. The Ninth Circuit also considered harmless error in the context of 10 the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a 11 medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006). 12 The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d 13 1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court 14 stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility 15 finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless 16 error.” See id. at 1162. The court articulated the difference between harmless error standards set 17 forth in Stout and Batson as follows: 18 19 20 21 22 23 24 . . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether the ALJ’s decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but that such error did not affect the ALJ’s decision, and therefore was harmless, because the ALJ’s remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what the ALJ would do if directed to reassess credibility on remand – we focused on whether the error impacted the validity of the ALJ’s decision. Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that “in each case, the ALJ’s error . . . was inconsequential to the ultimate nondisability determination.” 25 26 Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, 13 2 in that case the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine whether the ALJ’s decision was adequately supported. 3 Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted). 1 4 Thus, where the ALJ’s errs in not providing any reasons supporting a particular determination 5 (i.e., by failing to consider lay witness testimony), the Stout standard applies and the error is 6 harmless if no reasonable ALJ could have reached a different conclusion had the error not 7 occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is flawed 8 (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either legally 9 insufficient or unsupported by the record), the Batson standard applies and any error is harmless 10 if it is inconsequential to the ultimate decision because the ALJ’s disability determination 11 nonetheless remains valid. 12 In this case, any error applying the Grids is harmless. As plaintiff argues and 13 defendant appears to concede, the ALJ and Appeals Council erred by applying Grid rule 202.12 14 in determining that plaintiff’s ability to perform light work precludes a finding of disabled 15 because light work requires standing and/or walking for six hours in an eight-hour day. 16 According to the ALJ, plaintiff is only capable of standing/walking no more than four hours in an 17 eight-hour day. While the court agrees with plaintiff that the agency’s analysis is flawed, the 18 error is harmless because it is inconsequential to the ultimate disability determination. 19 Specifically, even though Grid rule 202.12 is inapplicable because it described light work, 20 plaintiff’s stand/walk limitation nonetheless allows for sedentary work under the Grids. In either 21 case, application of the Grids correctly directs a finding of not disabled. 22 /// 23 /// 24 /// 25 /// 26 /// 14 1 2 IV. CONCLUSION Based on the foregoing, the court concludes that the Commissioner’s final 3 decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 ORDERED that: 5 1. Plaintiff’s motion for summary judgment (Doc. 19) is denied; 6 2. Defendant’s cross-motion for summary judgment (Doc. 23) is granted; and 7 3. The Clerk of the Court is directed to enter judgment and close this file. 8 9 10 11 DATED: March 29, 2018 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 15