Anderson v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: July 27, 2021
• Docket: 3:20-cv-08049
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kathryn Marie Anderson, No. CV-20-08049-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 At issue is the denial of Plaintiff Kathryn Marie Anderson’s application for 17 disability insurance benefits by the Social Security Administration (“SSA”) under the 18 Social Security Act. Plaintiff filed a complaint (Doc. 1) seeking judicial review of that 19 denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 18, “Pl. Br.”), 20 Defendant SSA Commissioner’s Response Brief (Doc. 22, “Def. Br.”), and Plaintiff’s 21 Reply Brief (Doc. 23, “Reply”). The Court has reviewed the briefs and Administrative 22 Record (Doc. 27, “R.”) and now vacates and remands the Administrative Law Judge’s 23 (“ALJ”) decision for further proceedings. 24 I. BACKGROUND 25 Plaintiff filed an application for disability insurance benefits on May 12, 2016, for 26 a period of disability beginning on January 5, 2016. (R. at 18.) Her claim was denied 27 initially on October 4, 2016, and upon reconsideration on January 4, 2017. (Id.) Plaintiff 28 appeared before the ALJ for a video hearing regarding her claim on November 30, 2018, 1 which the ALJ denied on January 31, 2019. (Id. at 18, 24.) On January 6, 2020, the 2 Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as 3 the agency’s final decision. (Id. at 1-3.) 4 The ALJ’s analysis in this case was somewhat unusual in that it did not proceed 5 beyond step two of the disability evaluation. During step two, the ALJ must determine 6 whether the claimant has a “severe,” “medically determinable” physical or mental 7 impairment.1 Here, the ALJ determined that Plaintiff had the following eight medically 8 determinable impairments: (1) depressive disorder with anxiety; (2) hyperlipidemia; (3) 9 gastro esophageal reflux disease; (4) hiatal hernia; (5) hypertension; (6) obesity; (7) 10 hypothyroidism; and (8) a renal mass. (Id. at 20.) In contrast, although Plaintiff asserted 11 that she also suffered from “significant knee pain caused by osteoarthritis,” the ALJ 12 concluded that Plaintiff’s osteoarthritis was “not a medically determinable impairment.” 13 (Id. at 20-21.) The ALJ’s analysis on this point was as follows: 14 Of note, the claimant testified that she is unable to work because of an inability to stand for more than an hour without significant knee pain caused 15 by osteoarthritis. While the claimant may have had signs and symptoms of 16 osteoarthritis prior to her alleged onset date [of January 5, 2016], records from the relevant period were negative for arthritis. While an MRI of her 17 left knee from 2015 showed degenerative changes in her left knee, she 18 underwent an arthroscopic chondroplasty and debridement of her medial femoral condyle and the lateral patella that same year. Subsequent imaging 19 studies failed to show the presence of degenerative changes or arthritis in her 20 knees. For example, a September 2016 x-ray of her right knee was negative. X-rays of her knees from July 2018 were negative, with no mention of 21 arthritis. 22 Clinical examinations also showed the claimant exhibiting good functioning. Kristina Walker, D.O., completed a consultative examination with the 23 claimant in September 2016, observing that while the claimant had 24 difficulties with her balance and squatting, she walked with a normal gait and she was able to stoop without difficulty. Dr. Walker noted that the claimant 25 was able to stand from a sitting position and sit from a standing position 26 1 See 20 C.F.R. § 404.1520(a)(4)(ii) (“At the second step, we consider the medical 27 severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a 28 combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.”). 1 without difficulty or assistance. Subsequent examinations continued to show the claimant with a normal range of motion in her knees along with a steady 2 gait. In short, the claimant has not presented imaging studies or clinical 3 evidence of osteoarthritis, and as such, the undersigned has determined that it is not a medically determinable impairment. 4 5 (Id., citations omitted.) 6 Finally, the ALJ evaluated the severity of ALJ’s medically determinable 7 impairments and concluded, after considering the medical evidence and testimony, that all 8 of them were non-severe (and, thus, that Plaintiff was not disabled). (Id. at 21-24.) In the 9 course of this severity analysis, the ALJ also made some additional statements regarding 10 Plaintiff’s complaints of knee pain, concluding that (1) Plaintiff’s symptom testimony 11 regarding knee pain was “not entirely consistent with the medical evidence and other 12 evidence in the record”; (2) Plaintiff “walked with a normal gait on examination with the 13 consultative examiner, as well as during examinations with her treatment providers,” and 14 also “demonstrated a normal range of motion in her knees” when meeting with those 15 providers; (3) Plaintiff “reported to her primary care physician that she walks three miles 16 a day, which is inconsistent with her testimony of an inability to walk or stand for 17 prolonged periods”; (4) although Plaintiff “testified that she uses a cane when she will be 18 standing or walking for extended periods, . . . the undersigned was unable to find an 19 instance of her presenting to a medical appointment with a cane or evidence that a cane 20 was prescribed by a physician”; and (5) although the “record shows [Plaintiff] has a history 21 of degenerative changes to her knee, which resulted in her undergoing arthroscopic surgery 22 in September 2014,” “she appears to have made a full and complete recovery,” she “worked 23 for several years following this procedure,” and “a review of her medical record does not 24 show her experiencing a worsening in her condition, as imaging studies were consistently 25 negative and her clinical examinations failed to demonstrate deficits in her functioning.” 26 (Id. at 22.) Additionally, the ALJ assigned “little weight” to the opinion of Dr. Walker, a 27 consultative examiner, for the sole reason that Dr. Walker “appears to limit [Plaintiff] to a 28 light level because of subjective complaints of pain, rather than her own exam findings, 1 which showed [Plaintiff] walking with a normal gait and demonstrating full range of 2 motion in her joints.” (Id. at 24.) 3 II. LEGAL STANDARD 4 When reviewing an ALJ’s decision, the district court reviews only those issues 5 raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th 6 Cir. 2001). The Court may set aside the Commissioner’s disability determination only if 7 it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 8 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable 9 person might accept as adequate to support a conclusion considering the record as a whole. 10 Id. To determine whether substantial evidence supports a decision, the Court must consider 11 the record as a whole and may not affirm simply by isolating a “specific quantum of 12 supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than 13 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 14 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 15 omitted). 16 To determine whether a claimant is disabled for purposes of the Act, the ALJ 17 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 18 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 19 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 20 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 21 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 22 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 23 step three, the ALJ considers whether the claimant’s impairment or combination of 24 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 25 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 26 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 27 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 28 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 1 determines whether the claimant can perform any other work in the national economy 2 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 3 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 4 III. ANAYSIS 5 In this proceeding, Plaintiff focuses all of her arguments on the ALJ’s evaluation of 6 her knee condition. First, Plaintiff contends the ALJ erred in concluding that her 7 osteoarthritis of the knee was not a “medically determinable” impairment (Pl. Br. at 11- 8 14); second, Plaintiff contends the ALJ erred in assigning “little weight” to the opinion her 9 consultative examiner, Dr. Walker (id. at 14-18); and third, Plaintiff broadly contends the 10 ALJ erred by engaging in an “overly stringent application of the severity requirements at 11 step 2” (id. at 11-19). Each assignment of error is addressed below. 12 A. The ALJ Erred In Concluding That Plaintiff’s Osteoarthritis Was Not A 13 “Medically Determinable” Impairment 14 As noted, step two of the disability analysis requires the ALJ to determine whether 15 the claimant has a “severe,” “medically determinable” physical or mental impairment. 20 16 C.F.R. § 404.1520(a)(4)(ii). As for the “medically determinable” component of this 17 requirement, the impairment “must result from anatomical, physiological, or psychological 18 abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic 19 techniques. Therefore, a physical or mental impairment must be established by objective 20 medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. See 21 generally Johnson v. Saul, 848 F. App’x 703, 705 (9th Cir. 2021) (“[O]bjective medical 22 evidence from an acceptable medical source [is] necessary to conclude that an impairment 23 is medically determinable . . . .”). 24 Here, the ALJ concluded that Plaintiff’s osteoarthritis was not medically 25 determinable because (1) “[w]hile an MRI of [Plaintiff’s] left knee from 2015 showed 26 degenerative changes in her left knee, she underwent an arthroscopic chondroplasty and 27 debridement of her medial femoral condyle and the lateral patella that same year,” (2) all 28 of Plaintiff’s post-onset date (i.e., post-January 2016) imaging studies, including a 1 September 2016 x-ray and July 2018 x-ray, “were negative, with no mention of arthritis,” 2 and (3) Plaintiff’s examiner, Dr. Walker, observed that Plaintiff “exhibit[ed] good 3 functioning,” including walking with a normal gait, stooping without difficulty, and being 4 able to sit from a standing position and stand from a sitting position. (R. at 20-21.) 5 Plaintiff argues the ALJ’s analysis on this point was erroneous. (Pl. Br. at 11-14.) 6 Plaintiff emphasizes that MRIs conducted in July 2014 revealed that she had “thinning of 7 the articular cartilage” in both knees, yet the ALJ did not even mention the right-knee MRI. 8 (Id. at 12-13.) Plaintiff argues this omission was significant because “cartilage does not 9 simply regenerate on its own.” (Id.) Thus, because “Plaintiff never had surgery on her 10 right knee,” Plaintiff contends that the July 2014 “MRI provides clear proof that Plaintiff 11 has a severe, medically determinable impairment” in her right knee. (Id.) As for her left 12 knee, Plaintiff acknowledges that she subsequently had surgery on that joint but contends 13 the particular procedures performed during that surgery (“arthroscopic chondroplasty and 14 debridement”) would not have addressed her thinning cartilage. (Id.) As for the x-rays 15 discussed by the ALJ, Plaintiff argues that “the x-rays . . . are actually from 2013,” so “their 16 findings are superseded by the MRI results from 2014 and certainly do not indicate an 17 improvement in Plaintiff’s condition.” (Id. at 13-14.) Finally, Plaintiff contends that Dr. 18 Walker’s opinion further established the existence of a medically determinable impairment 19 because Dr. Walker “diagnosed Plaintiff with arthritis of the bilateral knees.” (Id. at 14.) 20 In response, the Commissioner argues that the July 2014 MRI does not establish the 21 existence of osteoarthritis in Plaintiff’s right knee because “orthopedist Dr. Moore, upon 22 reviewing these [July 2014] MRIs, concluded that . . . the right knee showed only ‘minimal 23 fraying’” and ultimately declined to perform surgery on Plaintiff’s right knee. (Def. Br. at 24 8.) As for Plaintiff’s left knee, the Commissioner argues that her subsequent surgery 25 resolved the issue because “[a]fter this surgery, objective studies did not show any evidence 26 of osteoarthritis.” (Id. at 7.) In a related vein, the Commissioner concedes that the ALJ 27 “erroneously referred to July 2013 x-rays as July 2018 x-rays” but contends that the ALJ 28 correctly identified the date of the other set of x-rays, which were taken in September 2016, 1 and argues that the September 2016 x-rays provide substantial evidence in support of the 2 ALJ’s opinion because they “showed no abnormalities” in Plaintiff’s right knee. (Id. at 7 3 n.3.) Finally, as for Dr. Walker, the Commissioner does not acknowledge Plaintiff’s 4 contention that Dr. Walker offered a specific diagnosis of bilateral arthritis in the knees— 5 instead, the Commissioner emphasizes that Dr. Walker’s observations of Plaintiff’s 6 functional abilities were normal. (Id. at 7.) 7 In reply, Plaintiff makes the following arguments: (1) although Dr. Moore may have 8 determined that the osteoarthritis in her right knee did not require surgery, this is not the 9 same thing as a determination “that her knee condition was not a medically determinable 10 impairment”; (2) the September 2016 x-ray does not “negate the findings of the 2014 MRI” 11 because “MRIs are uniquely useful for spotting musculoskeletal conditions including 12 cartilage loss,” whereas “X-rays are ideal for spotting fractures, but they will not show 13 subtle bone injuries, soft tissue injuries, or inflammation”; (3) her left knee surgery did not 14 eliminate the osteoarthritis in that joint, either, because it was intended to address other 15 conditions separate from the thinning of her cartilage; and (4) “Dr. Walker, an acceptable 16 medical source, included a ‘diagnosis of arthritis to bilateral knees.’” (Reply at 1-4.) 17 The ALJ’s determination that Plaintiff’s osteoarthritis did not qualify as a 18 “medically determinable” impairment cannot be affirmed on this record. First, and most 19 important, an MRI on Plaintiff’s right knee in July 2014 revealed the existence of 20 “[t]hinning of the articular cartilage throughout the apex and lateral facet of the patella.” 21 (R. at 341-42.) This appears to be objective, “medically determinable” evidence of 22 osteoarthritis in the right knee. Unfortunately, the ALJ did not acknowledge or discuss this 23 MRI—instead, the ALJ focused only on the MRI of Plaintiff’s left knee. This was error. 24 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not reject ‘significant 25 probative evidence’ without explanation”) (citation omitted). Although the Commissioner 26 attempts to fill this analytical void by proffering reasons why Dr. Moore’s report could be 27 construed as proof that Plaintiff’s right-knee condition was not medically determinable, the 28 problem is that the ALJ did not rely on Dr. Moore’s report in this manner in the opinion. 1 As the Ninth Circuit has emphasized, “[l]ong-standing principles of administrative law 2 require us to review the ALJ’s decision based on the reasoning and factual findings offered 3 by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may 4 have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 5 2009). Similarly, although the ALJ pointed out that “a September 2016 x-ray of 6 [Plaintiff’s] right knee was negative” (R. at 20), Plaintiff correctly notes that MRIs may 7 reveal degenerative changes that don’t appear in x-rays. Indeed, the September 2016 x-ray 8 only stated that Plaintiff’s right knee did not have any “soft tissue calcifications or 9 radiopaque foreign bodies” or “fracture or dislocation.” (R. at 379.) It said nothing at all 10 about osteoarthritis. At any rate, because the ALJ failed to acknowledge the July 2014 11 MRI of Plaintiff’s right knee, the Court has no way of knowing whether the ALJ found that 12 the September 2016 x-ray was more probative of the existence (or non-existence) of 13 osteoarthritis in Plaintiff’s right knee than the July 2014 MRI. This is an issue that requires 14 further elaboration on remand. 15 Second, separate and apart from the MRI evidence, Plaintiff proffered evidence that 16 Dr. Walker, her consultative examiner, opined that she had bilateral arthritis in the knees. 17 (R. at 256 [“What is the diagnosis? 1) Arthritis to bilateral knees per history with crepitus 18 and subjective tenderness to palpitation to bilateral knees and difficulty squatting. No 19 radiographic imaging provided.”].) Although the parties have not briefed the issue in any 20 detail, this diagnosis would also seem to qualify as proof that Plaintiff’s osteoarthritis of 21 the right knee was “medically determinable”—after all, it was a diagnosis of an 22 “anatomical, physiological, or psychological abnormalit[y]” that arose from “medically 23 acceptable clinical and laboratory diagnostic techniques” and was rendered by “an 24 acceptable medical source.” 20 C.F.R. § 404.1521. Notably, in the portion of the opinion 25 addressing whether Plaintiff’s osteoarthritis was medically determinable, the ALJ did not 26 acknowledge Dr. Walker’s opinion on this issue. Instead, the ALJ’s only discussion of Dr. 27 Walker was to note that Dr. Walker’s “[c]linical examinations . . . showed [Plaintiff] 28 exhibiting good functioning.” (R. at 21.) The problem with this approach is that it 1 conflates distinct issues. Whether Plaintiff’s osteoarthritis is “medically determinable” is 2 a separate inquiry from whether the osteoarthritis interferes with her functional abilities to 3 a sufficient degree to render her disabled. 4 Finally, even if subsequent portions of the ALJ’s analysis could be construed as 5 rejecting all of Dr. Walker’s opinions (including her diagnosis of bilateral osteoarthritis), 6 the ALJ committed error when rejecting Dr. Walker’s opinions, as discussed below. 7 B. The ALJ Erred In Rejecting Dr. Walker’s Opinions 8 As noted, the ALJ discussed Dr. Walker’s opinions and findings in two different 9 portions of the underlying order. First, in the portion of the order addressing whether 10 Plaintiff’s osteoarthritis was medically determinable, the ALJ seemed to credit Dr. 11 Walker’s evaluation of Plaintiff’s functional abilities, noting that Dr. Walker “observ[ed] 12 that while [Plaintiff] had difficulties with balancing and squatting, [Plaintiff] walked with 13 a normal gait and she was able to stoop without difficulty. Dr. Walker [also] noted that 14 [Plaintiff] was able to stand from a sitting position and sit from a standing position without 15 difficulty or assistance.” (R. at 21.) Second, in the portion of the order addressing whether 16 Plaintiff’s impairments were severe, the ALJ chose to assign “little weight” to Dr. Walker’s 17 opinions, for the sole reason that Dr. Walker “appears to limit [Plaintiff] to a light level 18 because of subjective complaints of pain, rather than her own exam findings, which showed 19 [Plaintiff] walking with a normal gait and demonstrating full range of motion in her joints.” 20 (Id. at 24.) 21 Plaintiff argues the ALJ erred by discounting Dr. Walker’s opinions in this manner. 22 (Pl. Br. at 14-18.) According to Plaintiff, “Dr. Walker’s opinion was supported by her 23 examination findings” because Dr. Walker observed that Plaintiff had difficulty squatting 24 and balancing and detected tenderness when examining Plaintiff’s knees. (Id. at 14-15.) 25 Plaintiff also contends that Dr. Walker’s opinions were based on, and consistent with, other 26 medical evidence in the record, including observations by other medical sources and a 27 history of receiving knee injections, so it was “not accurate” for the ALJ to reject the 28 opinions on the sole ground that they were based on subjective complaints. (Id. at 15-17.) 1 Finally, Plaintiff argues that the ALJ employed “illogical” reasoning when rejecting Dr. 2 Walker’s opinions because “Dr. Walker’s findings . . . [of] a normal gait and a full range 3 of motion” are consistent with, and do not undermine, Dr. Walker’s ultimate opinion that 4 Plaintiff is capable of standing and walking for six to eight hours per day and simply needs 5 to be limited to “occasional” lifting, carrying, working around heights, and working around 6 moving machinery. (Id. at 17-18.) 7 In response, the Commissioner argues that the ALJ properly rejected Dr. Walker’s 8 opinions due to the incongruity between Dr. Walker’s “benign” and “normal” clinical 9 findings as to Plaintiff’s functional abilities and Dr. Walker’s ultimate opinions. (Def. Br. 10 at 12-14 & n.5.) As for Plaintiff’s argument that Dr. Walker did not rely solely on her 11 clinical observations, but also relied on other medical sources’ observations, the 12 Commissioner argues that any such reliance was misplaced because “much of the evidence 13 that Plaintiff argues is consistent with Dr. Walker’s opinion pre-dated the relevant period 14 by several years.” (Id. at 14.) The Commissioner then proceeds to offer a detailed 15 discussion of why “the evidence that Plaintiff cites from within the relevant period does 16 little to support her argument,” including that some of the medical sources were 17 “naturopaths [who] are not acceptable medical sources.” (Id. at 14-16.) 18 In reply, Plaintiff reiterates her position that Dr. Walker’s observations of a normal 19 gait and range of motion are not inconsistent with Dr. Walker’s opined-to limitations and 20 that Dr. Walker did not rely solely on her subjective complaints. (Reply at 6-8.) 21 Where, as here, the opinion of a treating or examining physician is contradicted, “it 22 may be rejected for specific and legitimate reasons that are supported by substantial 23 evidence in the record.” Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 24 2008). An ALJ meets this standard by “setting out a detailed and thorough summary of 25 the facts and conflicting medical evidence, stating his interpretation thereof, and making 26 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 These standards require reversal here. The overarching issue is that the ALJ 28 misconstrued Dr. Walker’s opinion as being based solely on Plaintiff’s subjective 1 complaints of pain. (R. at 24 [“The undersigned has given [Dr. Walker’s] opinion little 2 weight, as she appears to limit [Plaintiff] to a light level because of subjective complaints 3 of pain, rather than her own exam findings, which showed [Plaintiff] walking with a normal 4 gait and demonstrating full range of motion in her joints.”].) In fact, Dr. Walker’s opinion 5 was based not only on Plaintiff’s subjective complaints of pain (and Dr. Walker’s clinical 6 observations) but also on medical records from other medical providers. (R. at 252 [noting 7 that Dr. Walker considered, inter alia, the “Progress Note from Denise McLain, nurse 8 practitioner, dated 5/20/2016, which shows . . . arthritis to bilateral knees”].) Although the 9 Commissioner identifies various reasons why the ALJ could have found that Dr. Walker’s 10 reliance on these materials was misplaced, this approach is foreclosed once again by the 11 “[l]ong-standing principles of administrative law [that] require us to review the ALJ’s 12 decision based on the reasoning and factual findings offered by the ALJ—not post hoc 13 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray, 14 554 F.3d at 1226. 15 Finally, to the extent the ALJ’s rejection of Dr. Walker’s opinions was based on the 16 belief that her opined-to limitations were inconsistent with her clinical observations, the 17 ALJ provided no analysis or explanation for how she came to this conclusion. Although 18 the Commissioner’s brief contains an extensive discussion of why the facts in the record 19 could be construed to support this conclusion, the ALJ should have been the one to provide 20 this analysis in the first instance. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 21 2015) (“[A]lthough we will not fault the agency merely for explaining its decision with 22 ‘less than ideal clarity,’ we still demand that the agency set forth the reasoning behind its 23 decisions in a way that allows for meaningful review. A clear statement of the agency’s 24 reasoning is necessary because we can affirm the agency’s decision to deny benefits only 25 on the grounds invoked by the agency.”) (citation omitted). This, too, supports a remand 26 for further proceedings. 27 … 28 … 1 C. The ALJ Erred In The Severity Analysis 2 As noted, the ALJ did not proceed beyond step two of the disability analysis because 3 she determined that all of Plaintiff’s impairments were non-severe. 4 The Ninth Circuit has characterized the step-two severity requirement as a “de 5 minimis screening device” designed to weed out “groundless claims.” Smolen v. Chater, 6 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment is not severe if it does not significantly 7 limit the claimant’s ability to do basic work activities. 20 C.F.R. § 404.1520(c). “Basic 8 work activities are ‘abilities and aptitudes necessary to do most jobs, including, for 9 example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or 10 handling.’” Smolen, 80 F.3d at 1273 (citation omitted). Only if the evidence establishes a 11 “slight abnormality” that has “no more than a minimal effect on [an individual’s] ability to 12 work” should the inquiry end at step two. Smolen, 80 F.3d at 1290. 13 Here, because the Court has determined that the ALJ erred in rejecting the opinions 14 of Dr. Walker, it follows that the ALJ erred in determining that Plaintiff’s osteoarthritis 15 was non-severe. Dr. Walker’s opined-to limitations included that Plaintiff can only 16 “occasionally” lift or carry 20 pounds and can only stand or walk for 6-8 hours in an 8 hour 17 day. (R. at 256-57.) Assuming these limitations are accurate, Plaintiff’s impairment is 18 sufficiently severe to satisfy the step-two “de minimis screening device.” Smolen, 80 F.3d 19 at 1290. 20 Finally, the Court also rejects the Commissioner’s argument that the ALJ’s decision 21 may be affirmed based on harmless error principles. Although such principles do apply in 22 the Social Security context, the record here—in particular, the ALJ’s failure to proceed 23 past step two and the ALJ’s failure to provide legally sufficient reasons for rejecting the 24 opinions of Dr. Walker—makes it impossible to apply them. To be clear, the Court 25 expresses no opinion as to the ultimate resolution of this matter on remand. Plaintiff’s 26 admission in 2018 to her primary care physician that “[s]he walks 3 miles a day” (R. at 27 381) seems difficult to reconcile with the theory that Plaintiff suffers from disabling 28 1 || osteoarthritis in her knee. Nevertheless, it is the ALJ’s role to provide a clear statement of the agency’s rationale for granting or denying benefits. Brown-Hunter, 806 F.3d at 492. 3 IT IS THEREFORE ORDERED vacating and remanding for further proceedings 4|| the January 31, 2019 decision of the ALJ (R. at 18-24), as upheld by the Appeals Council on January 6, 2020 (R. at 1-3). 6 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 8 Dated this 27th day of July, 2021. 9 10 Lm ee” ul f t _o——— Dominic W. Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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