Barstad v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 6, 2020
• Docket: 2:19-cv-01781
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 BRENDA B., CASE NO. 2:19-CV-1781-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 I. INTRODUCTION 16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the 17 Commissioner of the Social Security Administration’s (“Commissioner”) denial of Plaintiff’s 18 application for disability insurance (“DI”) benefits. Pursuant to 28 U.S.C. § 636(c), Federal 19 Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this 20 matter heard by the undersigned Magistrate Judge. See Dkt. 2. 21 After considering the record, the Court concludes the administrative law judge (“ALJ”) 22 erred by failing to adequately address at step two whether Plaintiff had severe impairments 23 related to her mental health, or of fibromyalgia. Had the ALJ properly addressed these issues, the 24 1 residual functional capacity (“RFC”) may have contained additional limitations. Accordingly, 2 this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the 3 Commissioner for further proceedings consistent with this Order. 4 II. FACTUAL AND PROCEDURAL HISTORY

5 Plaintiff filed an application for DI in March 2016, alleging disability as of April 5, 2013. 6 See Dkt. 8, Admin. Record (“AR”) 67–68, 156–60. The application was denied on initial 7 administrative review, and on reconsideration. See AR 67–78, 80–92. A hearing was held before 8 ALJ Tom Morris on May 10, 2018. See AR 29–63. In a decision dated October 1, 2018, the ALJ 9 determined Plaintiff to be not disabled. See AR 14–24. The Appeals Council denied review, 10 making the ALJ’s decision the final decision of the Commissioner. See AR 1–3; 20 C.F.R. § 11 404.981. 12 In Plaintiff’s opening brief, she maintains the ALJ erred by (1) failing to find that 13 Plaintiff had a severe mental impairment at step two; (2) failing to find that she had a severe 14 impairment of fibromyalgia at step two; and (3) failing to properly assess her RFC. Dkt. 10, p. 1.

15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 17 social security benefits if the ALJ’s findings are based on legal error or not supported by 18 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 19 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 20 IV. DISCUSSION 21 A. Whether the ALJ Erred at Step Two in Finding No Severe Mental Impairment 22 Plaintiff contends the ALJ erred at step two by failing to find that Plaintiff had any severe 23 mental impairments. See Dkt. 10, pp. 4–13. Plaintiff’s primary contention is that the ALJ failed

24 1 to explain why she partially rejected the opinions of examining psychiatrist Kirsten Nestler, 2 M.D. See id. 3 At step two, the ALJ must determine if the claimant suffers from any impairments that 4 are “severe.” 20 C.F.R. § 404.1520(c). “An impairment or combination of impairments may be

5 found ‘not severe only if the evidence establishes a slight abnormality that has no more than a 6 minimal effect on an individual’s work.’” Webb v. Barnhart, 433 F.3d 683, 686–87 (9th Cir. 7 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). But Plaintiff retains the 8 burden of proof at step two, and must present evidence showing that she suffers from an 9 impairment that has more than a minimal effect on her work. See Parra v. Astrue, 481 F.3d 742, 10 746 (9th Cir. 2007). 11 Dr. Nestler examined Plaintiff on July 19, 2016. See AR 508–12. Dr. Nestler diagnosed 12 Plaintiff with major depressive disorder and unspecified anxiety disorder. See AR 511. Dr. 13 Nestler opined that Plaintiff’s cognitive testing and function was normal, her anxiety was not 14 severe, and she could “keep up with all current functions.” See AR 512. Dr. Nestler opined that

15 Plaintiff would not have difficulty with any basic work activities except workplace stress. See id. 16 She opined that Plaintiff “would have difficulty dealing with the usual stress encountered in the 17 workplace due to her depression and anxiety.” Id. 18 The ALJ did not explain which of these opinions he accepted and which he rejected, but 19 stated that he gave Dr. Nestler’s statement “partial weight . . . to the extent that it is consistent 20 with the record.” AR 19. The ALJ then noted that Plaintiff did not need reminders to take care of 21 her personal needs or grooming, was able to handle financial matters, and reported that her 22 depression and anxiety were controlled by medication. See AR 19. 23

24 1 The ALJ’s analysis here was too minimal to pass scrutiny. The only one of Dr. Nestler’s 2 opinions that could lead to limitations is her statement that Plaintiff would have difficulty dealing 3 with typical workplace stress. See AR 512. But the Court cannot reasonably discern why the ALJ 4 rejected this opinion. “‘Although the ALJ’s analysis need not be extensive, the ALJ must provide

5 some reasoning in order for [the Court] to meaningfully determine whether the ALJ’s 6 conclusions were supported by substantial evidence.’” Brown-Hunter v. Colvin, 806 F.3d 487, 7 495 (9th Cir. 2015) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 705 F.3d 1090, 1103 (9th 8 Cir. 2014)). Here, the ALJ simply pointed to a few daily activities, and mentioned that Plaintiff 9 reported being stable on medication. See AR 19. But the ALJ did not link either fact to Plaintiff’s 10 ability to deal with workplace stress. Moreover, Plaintiff’s ability to perform basic life activities 11 such as personal grooming and paying bills does not mean she could withstand the everyday 12 stresses of a work environment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting 13 that “many home activities are not easily transferable to what may be the more grueling 14 environment of the workplace, where it might be impossible to periodically rest or take

15 medication”). Similarly, the fact that a claimant’s condition is controlled by medication does not 16 mean she is capable of working: “‘There can be a great distance between a patient who responds 17 to treatment and one who is able to enter the workforce . . . .’” Garrison v. Colvin, 759 F.3d 995, 18 1017 n.23 (9th Cir. 2014) (quoting Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011)). The 19 ALJ provided no analysis for his evaluation of Dr. Nestler’s opinions, and therefore erred in 20 considering whether Plaintiff had a severe mental impairment at step two. 21 The ALJ’s error must be deemed harmful. The step-two inquiry is “merely a threshold 22 determination meant to screen out weak claims.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th 23 Cir. 2017) (citing Bowen v. Yuckert, 482 U.S. 137, 146–47 (1987)). As long as the claimant has

24 1 at least one severe impairment, the disability inquiry moves on to step three. See 20 C.F.R. § 2 404.1520(d). The step-two inquiry “is not meant to identify the impairments that should be taken 3 into account when determining the RFC.” Buck, 869 F.3d at 1048–49. At the RFC phase, the 4 ALJ must consider the claimant’s limitations from all impairments, including those that are not

5 severe. Id. at 1049. “The RFC therefore should be exactly the same regardless of whether certain 6 impairments are considered ‘severe’ or not.” Id. (emphasis omitted). Thus, a claimant generally 7 cannot be prejudiced by failure to consider a particular impairment severe at step two as long as 8 the ALJ finds the claimant has at least one severe impairment, and still addresses the non-severe 9 impairment when considering the claimant’s RFC. Id. (citing Molina v. Astrue, 674 F.3d 1104, 10 1115 (9th Cir. 2012)). 11 Although the ALJ found at least one severe impairment at step two, and thus continued 12 with the disability evaluation, he harmfully erred here because he did not address Plaintiff’s 13 alleged mental impairments at the RFC phase. See AR 20–22. Had the ALJ done so, he may have 14 included additional limitations in the RFC. The ALJ therefore harmfully erred in failing to

15 properly assess at step two whether Plaintiff had a severe mental impairment. 16 B. Whether the ALJ Erred at Step Two in Not Finding a Severe Impairment of Fibromyalgia 17 Plaintiff contends the ALJ erred at step two by failing to find—or even address— 18 fibromyalgia as a severe impairment. See Dkt. 10, pp. 13–15. Plaintiff was examined by 19 rheumatologist Kevin Welk, M.D. on October 27, 2016. See AR 591–601. Plaintiff reported to 20 Dr. Welk that she had back, joint, knee, hip, wrist, finger, and shoulder pain. See AR 596. Dr. 21 Welk diagnosed Plaintiff with fibromyalgia, explaining that she had 17 of 18 tender points with 22 greater than three months of widespread pain. See AR 598. Dr. Welk discussed a treatment plan, 23 but did not opine as to any functional limitations. See AR 598–601. 24 1 The ALJ did not mention fibromyalgia in his decision. See AR 14–24. The ALJ erred in 2 doing so because the Court has no way to discern why he failed to consider this a severe 3 impairment. See Brown-Hunter, 806 F.3d at 495. 4 The ALJ’s error must once again be considered harmful. Although the ALJ discussed

5 some of Plaintiff’s alleged physical impairments at the RFC phase, it is not clear that he 6 accounted for all possible limitations from fibromyalgia. See AR 20–22. The ALJ discussed 7 limitations due to Plaintiff’s total knee replacements, osteoarthrosis, and obesity. See id. But 8 while there may be some overlap between limitations caused by fibromyalgia and those caused 9 by the impairments the ALJ addressed, Plaintiff alleges other areas of pain due to fibromyalgia 10 that were not covered. For example, Plaintiff alleged pain in her back and hands, neither of 11 which the ALJ explicitly addressed. See AR 20–22, 40–42. Had the ALJ properly considered 12 Plaintiff’s alleged fibromyalgia, then, he may have included additional limitations in the RFC. 13 The ALJ therefore harmfully erred in failing to address at step two whether Plaintiff had a severe 14 impairment of fibromyalgia.

15 C. Whether the ALJ Erred in Assessing Plaintiff’s RFC 16 Plaintiff contends the ALJ failed to account for all of Plaintiff’s limitations in the RFC. 17 See Dkt. 10, pp. 15–18. Because the Court has found that the ALJ erred in assessing Plaintiff’s 18 impairments at step two, Plaintiff’s argument succeeds. See supra Part IV.A–B. Plaintiff alleges 19 other specific impairments and limitations should have been included in the RFC, but the Court 20 need not address this because the ALJ must reevaluate the entire RFC on remand. 21 D. Scope of Remand 22 Plaintiff asks the Court to remand this matter for further administrative proceedings. See 23 Dkt. 10, p. 2. The Court agrees this is the appropriate remedy. See McCartey v. Massanari, 298

24 1 F.3d 1072, 1076 (9th Cir. 2002). On remand, the ALJ shall reassess Plaintiff’s impairments at 2 step two, including any mental disorders and fibromyalgia. Because the ALJ’s errors may have 3 affected his analysis of Plaintiff’s testimony, the ALJ should reevaluate Plaintiff’s symptom 4 testimony in light of this opinion. The ALJ shall reassess all other relevant steps of the disability

5 evaluation, including Plaintiff’s RFC, and conduct further proceedings as necessary to reevaluate 6 the disability determination in light of this opinion. 7 V. CONCLUSION 8 Based on the foregoing reasons, the Court finds that the ALJ improperly concluded 9 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 10 this matter is remanded for further administrative proceedings in accordance with the findings 11 contained herein. 12 Dated this 6th day of April, 2020. 13 A 14 David W. Christel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24