Greene v. Berryhill

• Court: District Court, S.D. California
• Decided: October 21, 2019
• Docket: 3:18-cv-02117
• Status: Unknown

Opinion

1 : FILED | 3 | OCT 2 + 2049 |

6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || URANNA G., Case No.: 3:18-cv-02117-RNB Plantift,| MEMORANDUM OPINION AND 13 | Vv. ORDER REGARDING CROSS- 14 ANDREW SAUL, Commissioner of SUDGMENY. SUMMARY 15 Social Security, 16 Defendant.) (ECF Nos. 17, 21) 17 18 On September 12, 2018, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) 19 || secking judicial review of a decision by the Commissioner of Social Security denying her 20 application for a period of disability and disability insurance benefits. Now pending before 21 Court and ready for decision are the parties’ cross-motions for summary judgment.” 22 ||For the reasons set forth herein, plaintiffs motion for summary judgment is GRANTED 23 the Commissioner’s cross-motion for summary judgment is DENIED. 24 25 To 26 Andrew Saul is hereby substituted as the defendant in this case per Fed. R. Civ. P. 27 ||25(d). 28 The parties have consented to Magistrate Judge jurisdiction. ]

1 PROCEDURAL BACKGROUND 2 On October 8, 2015, plaintiff filed an application for a period of disability and 3 || disability insurance benefits, alleging disability commencing January 1, 2015. (Certified 4 || Administrative Record [“AR”]) 500-06.) Plaintiff claimed that she was unable to work 5 to urinary cancer, high blood pressure, and anxiety. (AR 532.) Her application was 6 denied initially and upon reconsideration. (AR 424-27, 429-33.) 7 On June 30, 2016, plaintiff requested a hearing before an administrative law judge 8 ||(“ALJ?). (AR 434-35.) The hearing was held on October 17, 2016, with plaintiff electing 9 proceed without counsel. Testimony was taken from her and a vocational expert (“VE”). 10 || (See AR 345-82.)? The ALJ issued a decision on December 27, 2016, finding that plaintiff 11 }}was not disabled for purposes of her benefits application. (AR 406-14.) Thereafter, 12 plaintiff requested a review of the decision by the Appeals Council. (AR 464.) On 13 February 27, 2017, the Appeals Council granted review, vacated the ALJ’s decision, and 14 |\remanded for further proceedings. (AR 419-23.) 15 Pursuant to the order of remand, a supplemental hearing was held by the same ALJ 16 ||on August 8, 2017. Plaintiff again elected to proceed without counsel. Testimony was 17 ||taken from her and a VE. (See AR 37-93.) The ALJ issued a decision on October 25, 18 2017, again finding that plaintiff was not disabled for purposes of her benefits application. 19 21-31.) Thereafter, plaintiff (now represented by counsel) requested a review of the 20 |/decision by the Appeals Council. (AR 498-99.) The ALJ’s decision became the final 21 j|decision of the Commissioner on July 25, 2018, when the Appeals Council denied 22 || plaintiff's request for review. (AR 1-6.) This timely civil action followed. 23 24 25 26 27 3 At the outset of the hearing, the ALJ deemed plaintiff to have amended her alleged onset date to March 11, 2014. (See AR 350.)

1 SUMMARY OF THE ALJ’S FINDINGS 2 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 3 || evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that plaintiff 4 had not engaged in substantial gainful activity since March 11, 2014, the amended alleged 5 || onset date. (AR 23.) 6 At step two, the ALJ found that plaintiff had the following severe impairments: 7 || “residual effects from treatment of a malignant neoplasm of the ovary and uterine adnexa.” 8 24.)4 9 At step three, the ALJ found that plaintiff did not have an impairment or combination 10 || of impairments that met or medically equaled the severity of one of the impairments listed 11 the Commissioner’s Listing of Impairments. (AR 26.) 12 |} Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) 13 perform “the full range of skilled, sedentary work” as defined in the Commissioner’s 14 ||regulations, “but such work must have been safe, in that it could not have required more 15 ||than occasional stooping, bending, twisting or squatting; working on the floor (e.g., no 16 || kneeling, crawling or crouching); ascending or descending full flights of stairs (but a few 17 ||steps up or down not precluded); and working around dangerous unprotected heights, 18 machinery, or chemicals.” (AR 26.) 19 For purposes of his step four determination, the ALJ adduced and accepted the VE’s 20 || testimony that a hypothetical person with plaintiffs vocational profile and RFC would be 21 |/able to perform the requirements of plaintiff's past relevant work as a bookkeeper, as 22 || customarily performed in the national economy (but in reduced numbers). (AR 30.) 23 Accordingly, the ALJ concluded that plaintiff was not disabled. (AR 31.) 24 23 26 The ALJ further found that plaintiff's medically determinable impairment of an 27 || anxiety disorder was nonsevere because it “did not cause more than minimal limitation in 58 the claimant’s ability to perform basic mental work activities for any 12 consecutive month period of time from the amended alleged onset date to the present.” (AR 24.)

I PLAINTIFE’S SOLE CLAIM OF ERROR 2 Plaintiff claims that the ALJ erred in failing to consider the impact of plaintiff's mild 3 ||mental impairment on her ability to work. 4 5 STANDARD OF REVIEW 6 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 7 || determine whether the Commissioner’s findings are supported by substantial evidence and 8 || whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 9 || (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 10 || preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 11 || Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 12 ||“such relevant evidence as a reasonable mind might accept as adequate to support a 13 ||conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a whole 14 || and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 15 |/30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 16 ||the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 17 || (9th Cir, 1984). 18 19 DISCUSSION 20 To determine whether a claimant has a severe mental impairment at step two of the 21 || Commissioner’s sequential evaluation process, an ALJ must follow a “special technique.” 22 || See 20 C.F.R. §§ 404.1520a(a).° This entails the following steps: determining whether the 23

25 The Court notes that the Social Security Agency revised the medical criteria used to 26 evaluate claims involving mental disorders in a revised version of 20 CER. § 404.1520a effective January 17, 2017. The revised version applies to ALJ decisions issued after that 27 See 81 Fed. Reg. 66138-01, at 66138 n.1 (Sept. 26, 2016). Since the ALJ decision 0g here was issued on October 30, 2017, all references herein to 20 C.F.R. § 404.1520a will refer to the revised version.

1 |/claimant has any medically determinable mental impairments; rating the degree of 2 ||functional limitation resulting from the mental impairment(s) in four broad functional 3 areas; determining the severity of the mental impairment(s); and then, if any of the mental 4 ||impairments is severe, proceeding to step three of the sequential evaluation process. See 5 C.F.R. § 404.1520a(b)-(d). 6 Pursuant to the Commissioner’s regulations in effect at the time of the ALJ’s 7 ||decision here, the four broad functional areas are: understand, remember, or apply 8 ||information; interact with others; concentrate, persist, or maintain pace; and adapt or 9 ||manage oneself. See 20 C.F.R. § 404.1520a(c)(3). In rating the degree of limitation in 10 || these areas, the following five-point scale is utilized: None, mild, moderate, marked, and I] |lextreme. See 20 C.F.R. § 404.1520a(c)(4). Under the Commissioner’s regulations, if the [2 || degrees of limitation are rated as “none” or “mild,” the impairment generally is considered 13 ||not severe, “unless the evidence otherwise indicates that there is more than a minimal 14 || limitation in your ability to do basic work activities.” See 20 C.F.R. § 404.1520a(d)(1). 15 Here, the ALJ’s decision reflects that he followed the “special technique.” He 16 || acknowledged that plaintiffhad a medically determinable mental impairment of an anxiety 17 ||disorder. (AR 24.) However, he proceeded to find that (a) plaintiff had no limitation in 18 || the first and fourth broad functional areas (i.e., understanding, remembering or applying 19 information; and adapting or managing oneself), and (b) plaintiff had only a mild degree 20 |/of limitation in the other two broad functional areas (ie., interacting with others; and 21 ||concentrating, persisting, or maintaining pace). Accordingly, the ALJ found that 22 ||“[bjecause the claimant’s medically determinable mental impairments cause no more than 23 ‘mild’ limitation in any of the functional areas, they are nonsevere.” (AR 26.) 24 Plaintiff is not challenging the ALJ’s non-severity finding. Rather, plaintiff 25 contends that the ALJ’s failure to incorporate the mild limitations he found in the second 26 |jand fourth broad functional areas was legal error. Plaintiff further contends that the 27 || presence of even mild limitations in concentration, persistence, and pace and in interacting 28 || with others would have an impact on plaintiff's ability to perform her past relevant work

1 j|as a bookkeeper, given the highly skilled nature of the job. In support of this claim of error, 2 |) plaintiff is relying principally on the Ninth Circuit’s unpublished decision in Hutton v. 3 || Astrue, 491 F. App’x 850 (9th Cir. 2012). 4 In assessing a claimant’s RFC, an ALJ must consider the limiting effect of all 5 ||impairments, including those that are non-severe. See 20 C.F.R. § 404.1545(a)(2). In 6 || Hutton, the ALJ determined at step two that the claimant’s PTSD caused mild limitations 7 concentration, persistence or pace, but was non-severe. Hutton, 491 F. App’x at 850. 8 || The ALJ later explicitly excluded consideration of the claimant’s PTSD in making his 9 || determination of the claimant’s RFC because he found that the claimant lacked credibility. 10 || In holding that the ALJ had erred, the Ninth Circuit reasoned: “[W]hile the ALJ was free 11 |/to reject Hutton's testimony as not credible, there was no reason for the ALJ to disregard 12 || his own finding that Hutton's nonsevere PTSD caused some “mild” limitations in the areas 13 || of concentration, persistence, or pace.” Hutton, 491 F. App’x at 851. 14 Numerous courts in this Circuit have followed Hutton and found reversible error 15 |) where the ALJ failed to include mild mental limitations in the assessment of the claimant’s 16 ||RFC. See, e.g. Carlson v. Berryhill, 2019 WL 1116241, at *17-*18 (N.D. Cal. Mar. 10, 17 |}2019); Barrera v. Berryhill, 2018 WL 4216693, at *4-*5 (C.D. Cal. Sept. 5, 2018); Gates 18 || v. Berryhill, 2017 WL 2174401, at *2 (C.D, Cal. May 16, 2017); Smith v. Colvin, 2015 WL 19 || 9023486, at *8-*9 (N.D. Cal. Dec. 16, 2015); Kramer v. Astrue, 2013 WL 256790, at *2- 20 |/3 (C.D. Cal. Jan. 22, 2013). Other courts have found Hutton to be inapplicable where the 21 ||record demonstrates that the ALJ did consider a claimant’s non-severe mental impairments 22 || betore concluding that they did not cause any significant limitation necessitating inclusion 23 the RFC. See, e.g., Thompson v. Saul, 2019 WL 3302471, at *7 (E.D. Cal. July 23, 24 ||2019); George A. v. Berryhill, 2019 WL 1875523, at *3-*5 (C.D. Cal. Apr. 24, 2019); 25 || Lindsay v. Berryhill, 2018 WL 3487167, at *6 (C.D. Cal. July 18, 2018); Aranda v. 26 || Berryhill, 2017 WL 3399999, at *5-*6 (C.D. Cal. Aug. 8, 2017). 27 28

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l The Court concurs with plaintiff that this case falls squarely under Hutton. The ALJ 2 found mild limitations in two of the broad functional areas: interacting with others; 3 ||and concentrating, persisting, or maintaining pace. Based on these findings and his 4 || findings of no limitation in the two other broad functional areas, the ALJ determined that 5 ||plaintiff's medically determinable mental impairment of anxiety was non-severe. 6 || However, the ALJ acknowledged that the mental RFC assessment used at steps four and 7 || five of the sequential evaluation process “requires a more detailed assessment by itemizing 8 || various functions contained in the broad categories found in paragraph B of the adult 9 |;mental disorders listings.” (See AR 26, citing Social Security Ruling 96-8p.) 10 || Notwithstanding this acknowledgement, the ALJ discussed plaintiff's anxiety impairment 11 in connection with Finding No. 3 (severity) of his decision. (See AR 24-26.) The 12 || decision does not contain any discussion or reflect any reasoned consideration of the mild 13 || limitations caused by plaintiff's anxiety impairment in connection with Finding No. 5 14 ||(RFC). (See AR 26-30.) Nor does the decision contain any discussion or reflect any 15 ||reasoned consideration of the mild limitations caused by plaintiff’s anxiety impairment in 16 || connection with Finding No. 6 (past relevant work). (See AR 30.) The ALJ’s boilerplate 17 || assertion in connection with Finding No. 3 that his RFC assessment “reflects the degree of 18 || limitation the undersigned has found in the ‘paragraph B’ mental! function analysis” was 19 |inot sufficient. See Gates, 2017 WL 2174401, at *3 (rejecting the Commissioner’s 20 argument that one can “infer” that the ALJ considered plaintiff's mild mental limitations 21 inconsistent with Hutton); cf Curtis v. Comm'r of Soc. Sec., 584 F. App'x 390, 391 (9th 22 ||Cir, 2014) (“Although the ALJ wrote that he considered ‘{a]l] impairments, severe and 23 ||non-severe,’ in determining [the claimant's] residual functional capacity (RFC), we are 24 unable to determine on the record before us whether the ALJ adequately considered [the 25 ||/claimant's] mental health limitations.”). 26 27 6 Inexplicably, the Commissioner failed even to address Hutton in the Commissioner’s cross-motion/opposition to plaintiff’s summary judgment motion.

1 Thus, the ALJ plainly erred. Moreover, the Court is unable to find that the error was 2 “inconsequential to the ultimate nondisability determination” and therefore harmless. See 3 || Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The Court cannot determine what 4 || the result would have been if the ALJ had considered plaintiffs mild mental limitations 5 when assessing her RFC. Since the ALJ did not include in any of his hypotheticals to the 6 || VE any functional limitations relating to plaintiffs mild limitation in concentrating, 7 |i persisting, or maintaining pace (see AR 81-86), the Court also cannot determine how the 8 || VE would have testified had any such limitations been included in the hypotheticals posed. 9 ||The Court does note that, when the ALJ included a functional limitation relating to {0 || plaintiff's mild limitation in interacting with others in his second hypothetical (specifically, 11 limitation to only occasional verbal interaction with supervisors and coworkers), the VE 12 || testified that all of plaintiffs past work would be precluded. (See AR 83.) 13 14 CONCLUSION AND ORDER 15 The law is well established that the decision whether to remand for further 16 || proceedings or simply to award benefits is within the discretion of the Court. See, e.g., 17 || Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 18 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is 19 || warranted where additional administrative proceedings could remedy defects in the 20 ||decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d 21 635. Remand for the payment of benefits is appropriate where no useful purpose would 22 || be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th 23 |) Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 24 || 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits to 25 || which the disabled plaintiff is entitled, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 26 || 1985). 27 Here, the Court has concluded that this is not an instance where no useful purpose 28 || would be served by further administrative proceedings. Rather, remand is warranted to

1 permit the ALJ to reevaluate whether plaintiff is capable of performing her past relevant 2 || work as a bookkeeper and if not, to proceed to step five of the sequential evaluation process 3 ||to determine whether plaintiff can perform other work existing in significant numbers in 4 || the national economy. 5 For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED, 6 Commissioner’s cross-motion for summary judgment is DENIED, and it is hereby 7 || ORDERED that Judgment be entered reversing the decision of the Commissioner and 8 ||remanding this matter for further administrative proceedings pursuant to sentence four of 9 1142 U.S.C. § 405(g). 10 IT IS SO ORDERED. 11 :

12 || Dated: October 21, 2019 13 ROBERT N. BLOCK 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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