Patricia C. v. Saul

PATRICIA C., Plaintiff, v. ANDREW SAUL,Acting Commissioner of Social Security,¹ Defendant.

Case No.: 19-cv-00636-JM-JLB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

August 10, 2020

REPORT AND RECOMMENDATION

[ECF Nos. 10; 12]

This matter is before the Court on cross-motions for summary judgment. (ECF Nos. 10; 12.) Plaintiff Patricia C. moves under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying her application for Supplemental Security Income ("SSI").

This Report and Recommendation is submitted to United States District Judge Jeffrey Miller pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. After a careful review of the moving and opposing papers, the administrative record, and the applicable law, the CourtRECOMMENDS that the District Court GRANT Plaintiff's Motion for Summary Judgment, DENY the Commissioner's Cross-Motion for Summary Judgment, and that judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL BACKGROUND

On June 14, 2017, Plaintiff filed an application for SSI, alleging disability commencing January 5, 2017. (Administrative Record ("AR") 188.) After her application was denied initially and upon reconsideration, Plaintiff requested a hearing before an administrative law judge ("ALJ") on January 25, 2018. (AR 100.) On October 1, 2018, Plaintiff, her attorney, and vocational expert Connie Guillory ("the VE") appeared before ALJ Howard K. Treblin ("the ALJ") at an administrative hearing. (AR 35.) In a decision dated November 8, 2018, the ALJ found that Plaintiff was not disabled as defined by the Social Security Act. (AR 23.) The ALJ's decision became the final decision of the Commissioner on January 28, 2019, when the Appeals Council denied Plaintiff's request for review. (AR 5.) This timely civil action followed. (ECF No. 1.)

II. SUMMARY OF THE ALJ'S FINDINGS

In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 416.920. At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 30, 2017,² the application date. (AR 17.)

At Step Two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine; degenerative disc disease of the cervical

///spine, status post cervical spine surgery in February 2018 with overall improvement of symptoms; and moderate degenerative disease of the bilateral shoulders. (Id.)

At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the Commissioner's Listing of Impairments, including Listings 1.02 and 1.04. (AR 19.)

Next, the ALJ determined that Plaintiff had the residual functional capacity ("RFC"):

to lift or carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours out of an 8-hour workday; stand or walk for 6 hours out of an 8-hour workday; occasionally climb, balance, stoop, kneel, crouch, and crawl; avoid concentered exposure to extreme cold or heat, vibrations, unprotected heights[,] or dangerous or moving machinery.

(AR 20.)

At Step Four, the ALJ compared the RFC assessed to the demands of Plaintiff's past relevant work as a hand packer. (AR 23.) The ALJ accepted the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC would be able to perform her past relevant work as a hand packer, both as actually done and as generally done in the national economy. (Id.)

Based on his determination that Plaintiff could return to her past relevant work, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. (Id.)

III. STANDARD OF REVIEW

The Social Security Act allows for unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C. § 405(g). The scope of judicial review, however, is limited. The Commissioner's final decision should not be disturbed unless: (1) the ALJ's findings are based on legal error; or (2) the ALJ's determinations are not supported by substantial evidence in the record as a whole. See Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). Substantial evidence is "more than a mere scintilla, but may be less than a preponderance." Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Substantial evidence is "relevant evidence that, considering the entire

///record, a reasonable person might accept as adequate to support a conclusion." Id.; accord Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003).

In making this determination, the Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Where the evidence can reasonably be construed to support more than one rational interpretation, the Court must uphold the ALJ's decision. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

IV. PLAINTIFF'S CLAIMS OF ERROR

Plaintiff raises the following claims of error:

1. The ALJ erred by failing to find Plaintiff's post-traumatic stress disorder, major depressive disorder, and anxiety as severe impairments at Step Two. (ECF No. 10 at 16-19.)

2. The ALJ erred by failing to find that Plaintiff meets or equals Listing 1.04(A) for spinal disorders. (Id. at 19-22.)

3. The ALJ's RFC assessment is not supported by substantial evidence because it does not account for Plaintiff's mental health limitations. (Id. at 23-24.)

4. The ALJ's finding that Plaintiff can frequently reach, handle, and finger with her upper extremities and perform light work is not supported by substantial evidence. (Id. at 24-27.)

V. DISCUSSION

A. Claims 1 and 3

1. Claim 1—The ALJ's Step Two Determination

As stated, the ALJ determined Plaintiff to have severe impairments of degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, and moderate degenerative disease of the bilateral shoulders. (AR 17.) The ALJ found thatPlaintiff's medically determinable mental impairments of depressive disorder NOS and anxiety disorder NOS, considered singly and in combination, did not cause more than minimal limitation in Plaintiff's ability to perform basic mental work activities, and therefore were nonsevere. (AR 18.) Plaintiff argues that the ALJ erred in finding her anxiety, depression, and PTSD were nonsevere impairments.

a. Legal Standard

Step Two of the Commissioner's sequential evaluation process requires the ALJ to determine the medical severity of the claimant's medically determinable impairments. 20 C.F.R. § 416.920(a)(4)(ii). Under the Commissioner's regulations, an impairment is not severe "if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.922(a). Social Security Ruling ("SSR") 85-28 has clarified that this means "an impairment is not severe if it has no more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities." SSR 85-28, 1985 WL 56856 (Jan. 1, 1985); see also Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (stating that an impairment or combination of impairments may be found "not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." (quoting Smolen v Chater, 80 F.3d 1273, 1290 (9th Cir. 1996))). Step Two, then, is "a de minimis screening device [used] to dispose of groundless claims," Smolen, 80 F.3d at 1290, and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is "clearly established by medical evidence," SSR 85-28, 1985 WL 56856. On review, a court must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that the claimant did not have a medically severe impairment or combination of impairments. See Webb, 433 F.3d at 687.

In evaluating the severity of mental impairments specifically, an ALJ is required to follow a "special technique." 20 C.F.R. § 416.920a(a). Once an ALJ determines that the claimant has a medically determinable mental impairment, he must rate the degree of functional limitation resulting from the impairment in four broad functional areas:understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 20 C.F.R. § 416.920a(b), (c). In rating the degree of limitation, the ALJ uses a five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 416.920a(c)(4). If the ALJ rates the degrees of the claimant's limitations as "none" or "mild," the impairment is generally considered not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the claimant's ability to do basic work activities. 20 C.F.R. § 416.920a(d)(1).

b. Summary of Dr. Walker's and Dr. Smith's Treatment Notes

Plaintiff first presented to Dr. Walker, her psychologist, on November 1, 2017, with "anxious mood and affect," and detailed a history of decades-long alcohol abuse and periods of crystal meth use, with the most recent use in about 2015. (AR 1004-05.) Plaintiff reported a history of self-harm as a teenager and two suicide attempts, the first around 2010 and the second around 2016. (AR 1004.) Plaintiff further "reported increased depression" due to her "back pain." (Id.) Dr....