Coop v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: October 1, 2021
• Docket: 4:20-cv-05153
• Status: Unknown

Opinion

1 Oct 01, 2021

2 SEAN F. MCAVOY, CLERK

4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 PATRICIA C.,1 No. 4:20-CV-05153-EFS

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 10 KILOLO KIJAKAZI, ACTING SUMMARY-JUDGMENT MOTION COMMISSIONER OF SOCIAL 11 SECURITY,2

12 Defendant. 13 14 Plaintiff Patricia C. appeals the denial of benefits by the Administrative Law 15 Judge (ALJ). She alleges the ALJ erred by improperly determining that she did not 16 have any medically determinable severe impairments and ending the five-step 17

18 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 19 first name and last initial or as “Plaintiff.” See LCivR 5.2(c). 20 2 On July 9, 2021, Ms. Kijakazi became the Acting Commissioner of Social Security. 21 She is therefore substituted for Andrew Saul as Defendant. Fed. R. Civ. P. 25(d); 42 22 U.S.C. § 405(g). 23 1 disability analysis at step two. In contrast, Defendant Commissioner of Social 2 Security asks the Court to affirm the ALJ’s decision. After reviewing the record 3 and relevant authority, the Court grants Plaintiff’s Motion for Summary 4 Judgment, ECF No. 15, and denies the Commissioner’s Motion for Summary 5 Judgment, ECF No. 16. 6 I. Five-Step Disability Determination 7 A five-step sequential evaluation process is used to determine whether an 8 adult claimant is disabled.3 Step one assesses whether the claimant is currently 9 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 10 gainful activity, benefits are denied.5 If not, the disability evaluation proceeds to 11 step two.6 12 Step two assesses whether the claimant has a medically severe impairment 13 or combination of impairments that significantly limit the claimant’s physical or 14 15 16 17 18

19 3 20 C.F.R. § 404.1520(a). 20 4 Id. § 404.1520(a)(4)(i). 21 5 Id. § 404.1520(b). 22 6 Id. 23 1 mental ability to do basic work activities.7 If the claimant does not, benefits are 2 denied.8 If the claimant does, the disability evaluation proceeds to step three.9 3 Step three compares the claimant’s impairment or impairments to several 4 recognized by the Commissioner as so severe as to preclude substantial gainful 5 activity.10 If an impairment or combination of impairments meets or equals one of 6 the listed impairments, the claimant is conclusively presumed to be disabled.11 If 7 not, the disability evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work he performed in the past by determining the claimant’s residual 10 functional capacity (RFC).12 If the claimant can perform past work, benefits are 11 denied.13 If the claimant cannot perform past work, the disability evaluation 12 proceeds to step five. 13 Step five assesses whether the claimant can perform other substantial 14 gainful work—work that exists in significant numbers in the national economy— 15

16 7 20 C.F.R. § 404.1520(a)(4)(ii). 17 8 Id. § 404.1520(c). 18 9 Id. 19 10 Id. § 404.1520(a)(4)(iii). 20 11 Id. § 404.1520(d). 21 12 Id. § 404.1520(a)(4)(iv). 22 13 Id. 23 1 considering the claimant’s RFC, age, education, and work experience.14 If so, 2 benefits are denied. If not, benefits are granted.15 3 The claimant has the initial burden of establishing she is entitled to 4 disability benefits under steps one through four.16 At step five, the burden shifts to 5 the Commissioner to show the claimant is not entitled to benefits.17 6 II. Factual and Procedural Summary 7 Plaintiff filed a Title II application alleging a disability onset date of 8 December 1, 2017.18 Her claim was denied initially and upon reconsideration.19 An 9 administrative hearing was held by video before Administrative Law Judge Marie 10 Palachuk.20 11 When denying Plaintiff’s disability claim, the ALJ found: 12  Plaintiff met the insured status requirements through December 31, 13 2017. 14 15

16 14 Id. § 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984). 17 15 20 C.F.R. § 404.1520(g). 18 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 17 Id. 20 18 AR 123-29. 21 19 AR 61-63; AR 65-67. 22 20 AR 12-25. 23 1  Step one: Plaintiff had not engaged in substantial gainful activity 2 since December 1, 2017, the alleged onset date, through her date last 3 insured of December 31, 2017. 4  Step two: Plaintiff did not have any medically determinable severe 5 impairments. 6 The ALJ gave the following reasons for her conclusion at step two: 7  Plaintiff’s symptom reports—including that she cannot be on her feet 8 for more than a few hours and needs breaks due to severe lumbar 9 spine—were not consistent with the objective medical evidence for the 10 narrow period between the alleged onset date (December 1, 2017) and 11 Plaintiff’s date late insured (December 31, 2017) or even with evidence 12 from the year prior because 1) Plaintiff’s care consisted primarily of 13 medical visits for pain medication refills and the treatment records do 14 not contain significant objective findings; 2) Plaintiff’s records indicate 15 she was having great results with her pain medication; 3) Plaintiff 16 had normal gait and normal range of motion at some appointments; 17 and 4) Plaintiff’s “reasonably high-functioning activities of daily 18 living,” including being a caregiver for her elderly mother, were “not 19 supportive of her allegation of total disability.”21 20 21

22 21 AR 19-20. 23 1  The medical opinions given by Plaintiff’s treating and reviewing 2 physicians did not establish disability as of the date last insured. 3 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 4 which denied review.22 Plaintiff timely appealed to this Court. 5 III. Standard of Review 6 A district court’s review of the Commissioner’s final decision is limited.23 The 7 Commissioner’s decision is set aside “only if it is not supported by substantial 8 evidence or is based on legal error.”24 Substantial evidence is “more than a mere 9 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 10 mind might accept as adequate to support a conclusion.”25 Moreover, because it is 11 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 12 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 13 from the record.”26 The Court considers the entire record.27 14

15 22 AR 1-6. 16 23 42 U.S.C. § 405(g). 17 24 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 18 25 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 19 26 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 20 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 21 consider the entire record as a whole, weighing both the evidence that supports and 22 the evidence that detracts from the Commissioner’s conclusion,” not simply the 23 1 Further, the Court may not reverse an ALJ decision due to a harmless 2 error.28 An error is harmless “where it is inconsequential to the ultimate 3 nondisability determination.”29 The party appealing the ALJ’s decision generally 4 bears the burden of establishing harm.30 5 IV. Analysis 6 A. Step Two (Severe Impairment): Plaintiff establishes consequential error. 7

Plaintiff contends the ALJ erred at step two by failing to conclude that she 8 had even one medically determinable severe impairment. 9 At step two of the sequential process, the ALJ must determine whether the 10 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 11 physical or mental ability to do basic work activities.31 This involves a two-step 12 13 14 15

16 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 17 386 (8th Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that 18 such evidence was not considered[.]”). 19 28 Molina, 674 F.3d at 1111. 20 29 Id. at 1115 (cleaned up). 21 30 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 22 31 20 C.F.R. § 404.1520(c). 23 1 process: 1) determining whether a claimant has a medically determinable 2 impairment and 2), if so, determining whether that impairment is severe.32 3 Neither a claimant’s statement of symptoms, nor a diagnosis, nor a medical 4 opinion sufficiently establishes the existence of an impairment.33 Rather, 5 impairments “must result from anatomical, physiological, or psychological 6 abnormalities that can be shown by medically acceptable clinical and laboratory 7 diagnostic techniques.”34 “Therefore, a physical or mental impairment must be 8 established by objective medical evidence from an acceptable medical source.”35 9 “Objective medical evidence means signs, laboratory findings, or both.”36 In turn, 10 “[s]igns means one or more anatomical, physiological, or psychological 11 abnormalities that can be observed, apart from [a claimant’s] statements 12 (symptoms).”37 13 Laboratory findings means one or more anatomical, physiological, or psychological phenomena that can be shown by the use of medically 14 acceptable laboratory diagnostic techniques. Diagnostic techniques include chemical tests (such as blood tests), electrophysiological 15 16

17 32 Id. § 404.1520(a)(4)(ii). 18 33 Id. § 404.1521. 19 34 Id. 20 35 Id. 21 36 Id. § 404.1502(f). 22 37 Id. § 404.1502(g). 23 1 studies (such as electrocardiograms and electroencephalograms), medical imaging (such as X–rays), and psychological tests.38 2

Evidence obtained from the “application of a medically acceptable clinical 3 diagnostic technique, such as evidence of reduced joint motion, muscle spasm, 4 sensory deficits, or motor disruption” is considered objective medical evidence.39 5 If the objective medical signs and laboratory findings demonstrate the 6 claimant has a medically determinable impairment, the ALJ must then determine 7 whether that impairment is severe.40 8 The step-two severity threshold is a de minimis standard.41 “The Social 9 Security Regulations and Rulings, as well as case law applying them, discuss the 10 step two severity determination in terms of what is ‘not severe.’”42 A medically 11 determinable impairment is not severe if, and only if, the “medical evidence 12 establishes only a slight abnormality or a combination of slight abnormalities 13 which would have no more than a minimal effect on an individual’s ability to 14 15 16

17 38 Id. § 404.1502(c). 18 39 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical evidence 19 (2019). 20 40 See Social Security Ruling (SSR) 85-28 at *3. 21 41 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 22 42 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 23 1 work.”43 Stated differently, an impairment is not severe if it has no more than a 2 minimal effect on a claimant’s physical or mental ability to do basic work activities, 3 which include the following: walking, standing, sitting, lifting, pushing, pulling, 4 reaching, carrying, and handling.44 Because step two is simply a “screening device 5 [used] to dispose of groundless claims,”45 “[g]reat care should be exercised in 6 applying the not severe impairment concept.”46 7 Here, the ALJ found Plaintiff had the medically determinable impairment of 8 chronic back pain.47 Yet, the ALJ found this impairment was not severe because 9 Plaintiff “did not have an impairment or combination of impairments that 10 significantly limited the ability to perform basic work-related activities for 12 11 consecutive months.” In finding that Plaintiff did not have a severe impairment, 12 the ALJ rejected Plaintiff’s symptom reports and certain medical opinions. For two 13 reasons, the ALJ’s analysis is erroneous. 14 As an initial matter, the threshold for severity used by the ALJ— 15 “significantly limited”—is incorrect. As the Ninth Circuit explained in Yuckert v. 16 Bowen, “numerous appellate courts have imposed a narrow construction upon the 17

18 43 Id. 19 44 20 C.F.R. § 404.921(a) (2010); see SSR 85-28 at *3. 20 45 Smolen, 80 F.3d at 1290. 21 46 SSR 85-28 at *4. 22 47 AR 17. 23 1 severity regulation.”48 In Yuckert, as here, the ALJ relied on 20 C.F.R. 2 § 404.1520(c), which provides that a claimant must have an impairment or 3 combination of impairments that “significantly limits” the ability to do basic work 4 activities. The Ninth Circuit explained, however, that in so relying, the ALJ had 5 ignored that: 6 [The current definition for not-severe impairment] must be read in light of the earlier regulations defining severe impairment adopted in 7 1968, for, as explained by the Secretary in the Federal Register, the new terminology was intended solely to clarify, not to change, the 8 definition of “severe impairment.” The change in language was not accompanied by “an intention to alter the levels of severity for a 9 finding of disabled or not disabled.” 43 Fed. Reg. 55357–55358. In the 1968 regulations, non-severe impairment is described as, “... a slight 10 neurosis, slight impairment of sight or hearing, or other slight abnormality or combination of abnormalities.” 20 C.F.R. § 404.1520(a) 11 (1968).49

12 The Ninth Circuit then went on to note the Secretary’s subsequent 13 promulgation of SSR 85-28, which provides that “an impairment is found not 14 severe ... when medical evidence establishes only a slight abnormality or a 15 combination of slight abnormalities which would have no more than a minimal 16 effect on an individual's ability to work.”50 The Ninth Circuit stated that, while it 17 was not deciding that SSR 85-28 applied retroactively to Yuckert’s claim, “[t]he 18 Secretary’s interpretation in Ruling 85–28 suggests that, even today, the severity 19

20 48 841 F.2d 303, 306. 21 49 Id. (quoting Estran v. Heckler, 745 F.2d 340, 340–41 (5th Cir. 1984)). 22 50 Id. (quoting SSR 85-28) (emphasis in original). 23 1 regulation should be applied in light of the 1968 regulation.”51 Because the ALJ in 2 Yuckert “relied solely on the wording of section 404.1520(c) to require that Yuckert 3 show her impairments significantly limited her ability to work,” the Ninth Circuit 4 held “the ALJ misapplied the severity regulation to Yuckert’s claim because he did 5 not consider the 1968 regulation.”52 The Ninth Circuit vacated the judgment of the 6 district court and remanded the matter “for further proceedings to apply the proper 7 standard for step two of the evaluation process.”53 8 Here, as in Yuckert, the ALJ’s analysis is erroneous, as the ALJ appears to 9 rely solely on the language of § 404.1520(c) in holding that Plaintiff did not have a 10 medically determinable severe impairment because her ability to work was not 11 “significantly limited.” In requiring Plaintiff to show a “significant limitation,” the 12 ALJ ignored or overlooked the very narrow construction of the severity regulation. 13 The correct severity standard, as explained in Yuckert, SSR 85-28, and subsequent 14 cases, is whether Plaintiff has an impairment (or combination of impairments) that 15 has more than a minimal effect on her ability to do basic work activities.54 If so, 16 Plaintiff has a “severe impairment,” and the sequential analysis should proceed 17 beyond step two. Because the ALJ demanded from Plaintiff more than the law 18

19 51 Id. at 306-07. 20 52 Id. 21 53 Id. at 307. 22 54 SSR 85-28 at *3; see also, e.g., Webb, 433 F.3d at 687; Smolen, 80 F.3d at 1290. 23 1 requires with respect to showing a “severe” impairment, the case must be 2 remanded. 3 The ALJ’s analysis is flawed for an additional reason. As noted above, at 4 step two of the disability analysis, the focus is on whether objective medical 5 evidence establishes that a claimant has a severe, medically determinable 6 impairment.55 Indeed, “[a]t the second step of sequential evaluation … medical 7 evidence alone is evaluated in order to assess the effects of the impairment(s) on 8 ability to do basic work activities.”56 The opinion of a treating physician, or any 9 physician, that a claimant has a severe impairment cannot alone establish the 10 existence of such an impairment.57 Likewise, a claimant’s symptom reports cannot 11 alone establish that she has a severe impairment.58 Because medical opinions and 12 symptom reports cannot establish a severe impairment, the rejection of medical 13 opinions and symptom reports also cannot establish the absence of a severe 14 impairment. Here, the ALJ should have focused on the objective medical evidence 15 in the case—not the medical opinions or Plaintiff’s symptom reports, as rejecting 16 one or both of these things is not enough to show the absence of a severe 17 impairment. 18

19 55 20 C.F.R. § 404.1521. 20 56 SSR 85-28 at *4. 21 57 See id. 22 58 See id. 23 1 Having said that, the ALJ did mention some medical evidence while 2 discussing her rejection of Plaintiff’s symptom reports. The ALJ stated that: 3 The few physical examinations that exist prior to December 2017 are largely unremarkable. In March 2017, the claimant demonstrated 4 normal gait, normal range of motion in all joints although there was tenderness to palpation of the scapula, spine, and bilateral shoulders, 5 but without muscle atrophy, swelling, erythema, ecchymosis or signs of instability (Exhibit 5F/11-12). In May 2017, she demonstrated 6 normal gait, normal range of motion in all joints, no muscle atrophy, swelling, erythema, ecchymosis or signs of instability (Exhibits 2F/33- 7 34; 5F/14-15). In July 2017, exam was with some limited twisting, turning, and bending secondary to some low back pain/discomfort, and 8 also some tenderness around the SI joint and paravertebral processes which seemed to be worsened with bending; otherwise there was no 9 obvious muscle atrophy, swelling, erythema, ecchymosis, tenderness or signs of instability, motor and sensation was intact, she had normal 10 strength and reflexes, and gait was normal (Exhibit 2F/28; 5F/25-26). In September 2017, she demonstrated limited range of motion due to 11 multiple joint pain/discomfort, but minimal swelling and tenderness, normal motor and sensation, normal strength and reflexes, normal 12 gait (Exhibits 2F/27; 5F/28-29). 13 While this evidence was mentioned, it was not discussed in relation to the 14 existence or absence of a severe impairment. Rather, as noted above, the ALJ cited 15 this medical evidence as a reason to discount Plaintiff’s symptom reports. Again, a 16 claimant’s symptom reports cannot establish or disprove the existence of a severe 17 impairment at step two of the disability analysis. Moreover, even if medical 18 evidence shows that a claimant’s symptoms are not as significant as alleged, that 19 does not mean the same medical evidence shows the absence of a severe 20 impairment. In other words, the ALJ’s analysis of the medical evidence in the 21 context of Plaintiff’s symptom reports cannot be transplanted into the step-two 22 analysis. 23 1 The ALJ’s primary reliance on medical opinions and symptom reports in her 2 evaluation of whether Plaintiff had one or more severe impairments is an 3 additional reason the case must be remanded for reconsideration. 4 B. Remand for Further Proceedings 5 Plaintiff urges this Court to conclude that she has a medically determinable 6 severe impairment and asks the Court to direct the ALJ on remand to begin the 7 sequential analysis at step three. This Court, however, believes the ALJ should be 8 the first to conduct factfinding under the appropriate legal standard. 9 On remand, therefore, the ALJ is instructed to reevaluate the sequential 10 analysis, beginning at step two. As noted herein, the ALJ must be mindful that 11 step two is a “screening” step that sets forth a de minimis standard meant to 12 dispose of groundless claims. On remand, the ALJ may end the sequential analysis 13 at step two “only if the evidence establishes a slight abnormality that has no more 14 than a minimal effect on an individual’s ability to work.”59 The ALJ’s step two 15 determination must be “clearly established by medical evidence.”60 The ALJ must 16 also be mindful that several impairments can combine to produce a severe 17 impairment.61 The ALJ, therefore, must determine whether Plaintiff has a 18 combination of impairments that together amount to a severe impairment because 19

20 59 Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290). 21 60 Id. at 687 (quoting SSR 85-28 at *3) (emphasis added). 22 61 SSR 85-28 at *3. 23 1 they combine to produce more than a minimal effect on Plaintiff’s ability to perform 2 basic work activities. The ALJ shall further develop the record if necessary and, if 3 the ALJ cannot clearly determine the effect of Plaintiff’s impairment or 4 combination of impairments on her ability to do basic work activities, the ALJ shall 5 not end the sequential evaluation at step two but shall instead proceed to the 6 remaining steps of the analysis, as appropriate.62 7 V. Conclusion 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 10 GRANTED. 11 2. The Commissioner’s Motion for Summary Judgment, ECF No. 16, is 12 DENIED. 13 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 14 REVERSING and REMANDING the matter to the Commissioner of 15 Social Security for further proceedings pursuant to sentence four of 42 16 U.S.C. § 405(g). 17 4. The case shall be CLOSED. 18

19 62 SSR 85-25 at *4 (“If an adjudicator is unable to determine clearly the effect of an 20 impairment or combination of impairments on the individual's ability to do basic 21 work activities, the sequential evaluation process should not end with the not 22 severe evaluation step. Rather, it should be continued.”). 23 1 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 2 provide copies to all counsel. 3 DATED this 1st day of October 2021. 4

s/Edward F. Shea _____________ 5 EDWARD F. SHEA Senior United States District Judge 6

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