1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} ROSEMARY GUADALUPE V., Case No.: 3:19-cv-00715-RBM 12 Plaintiff, ORDER: 13 || V. os (1) GRANTING IN PART Seo Geen SAUL, Commissioner of PLAINTIFF’S MOTION FOR 15 Ys SUMMARY JUDGMENT; 16 Defendant. (2) GRANTING IN PART 17 DEFENDANT’S MOTION FOR 18 SUMMARY JUDGMENT; AND 19 (3) REMANDING THIS ACTION TO 0 THE COMMISSIONER OF SOCIAL SECURITY 21 [Docs. 15, 18, 20.] 23 I. INTRODUCTION 24 Plaintiff Rosemary Guadalupe V. (‘Plaintiff’) filed a Complaint pursuant to 42 25 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of the final decision of the 26 27 28 ' Andrew M. Saul became Commissioner of Social Security on June 17, 2019 and is therefore substituted for Nancy A. Berryhill as Defendant. See 42 U.S.C. § 405(g); Fed R. Civ. P. 25(d).
1 |}Commissioner of the Social Security Administration (“Defendant” or “Commissioner’”) 2 || denying Plaintiffs application for Disability Insurance Benefits and Supplemental Security 3 ||Income under Titles II and XVI of the Social Security Act (the “Act’”). (Doc. 1.) Before 4 Court are Plaintiff's Motion for Summary Judgment (Doc. 15); Defendant’s Cross- 5 ||Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary 6 || Judgment (Doc. 18); and Plaintiff's Reply in Support of Motion for Summary Judgment 7 \|(Doc. 20). 8 The parties consented to Magistrate Judge jurisdiction. (See Gen. Or. 707; Doc. 5.) 9 After a thorough review of the papers on file, the Administrative Record (“AR”), the 10 || facts, and applicable law, Plaintiff's Motion for Summary Judgement is GRANTED IN 11 |}PART and DENIED IN PART, Defendant’s Cross-Motion for Summary Judgment is 12 ||}GRANTED IN PART and DENIED IN PART, and the decision of the ALJ is 13 || REMANDED. 14 Il. PROCEDURAL BACKGROUND 15 On October 7, 2014, Plaintiff filed an application for Disability Insurance Benefits 16 Supplemental Security Income under Titles II and XVI of the Act, alleging disability 17 beginning on December 18, 2011. (AR, at 149-161.7) After Plaintiff's claim was denied 18 || initially on March 26, 2015 (AR, at 94-97), and upon reconsideration on September 16, 19 ||2015 (AR, at 103-107), Plaintiff requested a hearing before an ALJ, which was held on 20 || November 21, 2017 (AR, at 37-53). Plaintiff appeared and was represented by counsel, 21 || and testimony was taken from Plaintiff and Victoria Rei, a vocational expert (“VE”). 22 On March 1, 2018, the ALJ issued a written decision in which he found Plaintiff was 23 ||not disabled as defined in the Act. (AR, at 20-32.) On February 22, 2019, the Appeals 24 ||Council denied review of the ALJ’s ruling, and the ALJ’s decision became the final 25 || decision of the Commissioner pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (AR, at 1-6.) 26 27 28 ? All AR page-number citations refer to the numbers listed on the bottom right-hand comer of the page, rather than page numbers assigned by the CM/ECF system.
1 Tt. THE ALJ’S FINDINGS 2 In his decision, the ALJ initially determined Plaintiff met the insured status 3 ||requirements of the Act through December 31, 2016. (AR, at 25.) The ALJ then followed 4 || the five-step sequential evaluation process to determine whether Plaintiff is disabled. See 5 C.F.R. §§ 404.1520(a), 416.920(a). 6 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 7 \|since December 18, 2011, the alleged onset of disability. (AR, at 25.) 8 At step two, the ALJ found Plaintiff suffers from carpal tunnel syndrome, a severe 9 ||impairment. (/d.) 10 At step three, the ALJ found Plaintiff does not have an impairment of combination 11 ||of impairments that meets or medically equals the severity of one of the impairments listed 12 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR, at 28.) 13 Next, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to 14 || perform a wide range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). 15 ||(AR, at 28.) Specifically, Plaintiff is able to: 16 lift and carry up to 20 pounds occasionally and up to 10 pounds frequently . . . 17 stand, or walk 6 hours in an 8-hour workday . . . perform tasks where there is a frequent but not constant requirement for [stooping], crouching, kneeling, 18 and climbing stairs . . . perform tasks where there is no requirement for 19 crawling or climbing ropes, ladders, or scaffolds . . . perform tasks where there is no requirement for forceful gripping or torqueing, but [Plaintiff] can do 20 normal handling and fingering. 21 || Ud.) 22 At step four, the ALJ found Plaintiff was capable of performing past relevant work 23 ||as an “Office Manager (sedentary, skilled with an SVP of 7), as found in the Dictionary of 24 || Occupational Titles (DOT) at catalogue #169.167-034.” (Ud., at 32 (emphasis in original).) 25 Accordingly, the ALJ determined that Plaintiff “has not been under a disability, as 26 || defined in the [Act], from December 18, 2011, through the date of []his decision... .” 27 98
1 IV. ISSUES IN DISPUTE 2 As set forth in the parties’ moving and responding papers, the disputed issues are as 3 || follows: 4 l. Whether the ALJ properly discounted Plaintiff's subjective testimony 5 ||regarding an alleged disability due to carpal tunnel syndrome (Doc. 15, at 7-10; Doc. 18, 6 10-18); and 7 2. Whether the ALJ properly assessed Plaintiff's mental health impairment at 8 || step two of the evaluation process (Doc. 15, at 11-13; Doc. 18, at 18-22). 9 Vv. STANDARD OF REVIEW 10 The Act provides for judicial review of a final agency decision denying a claim for 11 ||disability benefits in federal district court. 42 U.S.C. §§ 405(g), 1383(c). “As with other 12 agency decisions, federal court review of social security decisions is limited.” Treichler v. 13 || Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A federal court will uphold 14 Commissioner’s disability determination “unless it contains legal error or is not 15 || supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 16 ||(citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). 17 Substantial evidence means “more than a mere scintilla, but less than a preponderance; it 18 such relevant evidence as a reasonable person might accept as adequate to support a 19 |jconclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); Morgan y. 20 Comm’r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 2003). In reviewing whether the ALJ’s decision is supported by substantial evidence, the 22 Court must consider the record as a whole, “weighing both the evidence that supports and 23 || the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter, 504 F.3d at 24 1035 (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The ALJ is 25 ||responsible for “determining credibility, resolving conflicts in medical testimony, and for 26 |/resolving ambiguities.” Garrison, 759 F.3d at 1010 (quoting Andrews v. Shalala, 53 F.3d 27 1035, 1039 (9th Cir. 1995)). 28
l When the evidence is susceptible to more than one rational interpretation, the ALJ’s 2 |{conclusion must be upheld. Batson v. Comm □□ Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 3 || Cir. 2004); see also Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Stated 4 differently, when the evidence “can reasonably support either affirming or reversing a 5 decision, [the Court] may not substitute [its] judgment for that of the [ALJ]”; rather, the 6 ||Court only reviews “the reasons provided by the ALJ in the disability determination and 7 ||may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 8 111010 (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). Further, when 9 || medical reports are inconclusive, questions of credibility and resolution of conflicts in the 10 || testimony are the exclusive functions of the ALJ. Magallanes v. Bowen, 881 F.2d 747, 751 11 Cir. 1989). It is not within the Court’s province to reinterpret or re-evaluate the 12 |levidence, even if a re-evaluation may reasonably result in a favorable outcome for the 13 || plaintiff. Batson, 359 F.3d at 1193. 14 VI. DISCUSSION 15 A. The ALJ Properly Discounted Plaintiff’s Subjective Testimony. 16 Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for 17 || discounting her testimony that her pain inhibited the higher dexterity required to perform 18 past job as an office manager, therefore, the ALJ’s RFC finding is unsupported by 19 |/substantial evidence. (Doc. 15, at 7-10.) Defendant responds that the ALJ reasonably 20 || provided proper and compelling reasons to discredit Plaintiff's subjective testimony, and 21 |;}came to a reasonable conclusion based on substantial evidence. (Doc. 18, at 10-18.) 22 In assessing the credibility of a claimant’s testimony regarding the intensity of 23 ||symptoms, the ALJ engages in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 24 Cir. 2012) (internal citation omitted). First, the ALJ determines “whether there is 25 objective medical evidence of an underlying impairment which could reasonably be 26 ||expected to produce the . . . symptoms alleged.” Jd. (internal quotations and citations 27 ||omitted). If the claimant presents such evidence to satisfy the first step of the analysis, an 28 || ALJ can reject the claimant’s subjective allegations of impairment “only upon (1) finding
1 |}evidence of malingering, or (2) expressing clear and convincing reasons for doing so.” 2 || Benton v. Bamhart, 331 F.3d 1030, 1040 (9th Cir. 2003); see Lester v. Chater, 81 F.3d 821, 3 (9th Cir. 1995) (the ALJ must provide clear and convincing reasons for discrediting a 4 ||claimant’s testimony as to severity of symptoms when there is medical evidence of an 5 || underlying impairment); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th 6 2009) (clear and convincing reasons exist to discredit a claimant’s subjective 7 ||complaint testimony when the ALJ points to specific evidence in the record which 8 |}undermines the claim of disability). 9 In weighing a claimant’s credibility, the ALJ may consider the extent to which a 10 ||claimant’s allegations of disabling impairments are consistent with objective medical 11 evidence, the claimant’s daily activities and the claimant’s ability to treat symptoms with 12 ||medication. Lingenfelter, 504 F.3d at 1040; see also Crosby v. Comm’r of Soc. Sec. 13 || Admin., 489 Fed. App’x. 166, 168 (9th Cir. 2012) (it is proper to consider medical records 14 || to evaluate credibility of claimant’s subjective statement of impairment). An ALJ may 15 discredit a claimant’s impairment, but the ALJ must “identify what testimony is not 16 ||credible and what evidence undermines the claimant’s complaints.” Berry v. Astrue, 622 17 || F.3d 1228, 1234 (9th Cir. 2010) (finding inconsistencies in claimant’s reported symptoms 18 || and activities supported ALJ’s decision discrediting claimant’s subjective complaints of 19 || impairment). 20 Here, the ALJ provided clear and convincing reasons to discredit Plaintiffs 21 ||subjective complaint testimony by pointing to specific evidence in the record which 22 ||undermines Plaintiff's complaints, such as inconsistencies between Plaintiffs subjective 23 ||allegations and her daily activities, the objective medical evidence, and within the 24 || testimony itself. 25 At the outset, the ALJ cited to several inconsistencies in Plaintiff's statements 26 || concerning the intensity, persistence and limiting effects of her symptoms. (AR, at 29.) 27 ALJ cited to Plaintiff's report that “she drops things and cannot feel with her hands, 28 has no issues taking care of herself, including dressing, taking care of her hair, and
1 ||shaving.” (Ud.) The ALJ also cited to Plaintiffs reports that she uses a walker, but noted 2 ||““[s]he did not bring a walker to the hearing, and demonstrated no impairment of 3 |}ambulation.” (Ud.) Although Plaintiff “stated that she cannot concentrate more than five 4 || minutes at a time,” the ALJ cited to Plaintiff's hobbies, which include “watching television 5 ||and reading,” both of which “require at least a modicum of ability to attend, concentrate, 6 || and persist.” (/d.) 7 Additionally, the ALJ discredited Plaintiff's subjective complaints of disability due 8 carpal tunnel syndrome by citing to inconsistences in the objective medical evidence. 9 || Plaintiff alleged that she has suffered wrist pain since 2012, but the medical evidence does 10 show any documented complaint until March 23, 2015. (AR, at 30.) When Plaintiff 11 ||had EMG testing? on April 14, 2015, the testing was abnormal and indicated bilateral 12 ||median sensory neuropathy at the carpal tunnel region; but a few days later at an orthopedic 13 || examination, Plaintiff showed no evidence of functional limitations, no abnormalities with 14 hands, and was assessed with a normal grip. (/d.) At another examination in October 15 ||2015, Plaintiff exhibited a positive Phalen’s test* and 4/5 grip weakness, but showed no 16 atrophy, swelling, warmth, tenderness of the soft tissues or joints, and a negative Tinel’s 17 ||sign.? Ud.) 18 || —————_——__ 20 An electromyogram (“EMG”) test is an electrodiagnostic examination measuring muscle response or 21 || electrical activity in response to a nerve’s stimulation of the muscle; it is used to help detect neuromuscular abnormalities such as carpal tunnel syndrome. See https://www.hopkinsmedicine.org/health/treatment- 22 || tests-and-therapies/electromyography-emg (last visited Dec. 27, 2019). 23 Phalen’s test is used in the diagnosis of carpal tunnel syndrome. Patients are told to press the dorsal 24 surface of their hands together and hold the position for thirty to sixty seconds; this position increases the pressure in the carpal tunnel. Burning, tingling or numbness in the hands or fingers is a positive test and 25 indicator of carpal tunnel syndrome. See https://www.physio-pedia.com/Phalen%E2%80%99s_Test (last visited Dec. 27, 2019). 26 > Tinel’s test is used in the diagnosis of carpal tunnel syndrome. A physician lightly taps over the irritated 27 || nerve. Ifthe tapping elicits a sensation of tingling or “pins and needles” along the nerve, the test is positive and may indicate carpal tunnel syndrome. See https://www.physio-pedia.com/Tinel%E2%80%99s_Test 28 y Tp: □ (last visited Dec. 27, 2019).
1 Lastly, the ALJ analyzed Plaintiff's Function Report which alleges Plaintiff is unable 2 ||to work because of pain in her hand and loss of grip and sensation. (AR, at 31.) The ALJ 3 contrasted this allegation with Plaintiff's statement that she has no problem with personal 4 || care including dressing, bathing, caring for her hair, shaving, feeding herself, self-toileting, 5 ||preparing her own meals, and performing household chores. (/d.) Further, Plaintiff 6 ||reported going out by herself, shopping, and counting change. (/d.) While Plaintiff 7 ||reported that she has difficulty lifting, seeing, using her hands, the ALJ noted Plaintiff 8 || failed to give examples or clarify any of these allegations. Ud.) In assigning the Function 9 ||Report “little weight,” the ALJ explained “claimant’s subjective allegations exceed the 10 || objective medical evidence” and found the Function Report to be “inconsistent with the 11 ||record as a whole.” (/d.) 12 By citing to objective medical evidence, Plaintiffs daily activities and 13 || inconsistences in Plaintiffs statements, the ALJ provided clear and convincing reasons for 14 || discounting Plaintiffs subjective complaints of disability. Lingenfelter, 504 F.3d at 1040; 15 || Berry, 622 F.3d at 1228. Therefore, the ALJ came to a reasonable conclusion supported 16 || by substantial evidence and Plaintiff is not entitled to remand on this ground. 17 B. The ALJ Improperly Assessed Plaintiff's Mental Health Impairment at 18 Step Two of the Evaluation Process. 19 Plaintiff contends the ALJ improperly assessed her mental impairment as non-severe 20 ||and thus erroneously concluded Plaintiff can perform her past job as an office manager. 21 ||(Doc. 15, at 11-13.) Specifically, Plaintiff contends: (1) the ALJ should have asked the VE 22 || whether the limitations posed by Plaintiff's mental health impairment, however slight, 23 ||preclude Plaintiff from performing her past job; and (2) the ALJ failed to account for 24 psychiatric treatment notes which allegedly support a finding of a severe mental 25 |/impairment. (Ud.) Defendant counters that the ALJ properly weighed the evidence of 26 ||record and the ALJ’s finding of a non-severe mental impairment is based on substantial 27 |jevidence. (Doc. 18, at 18-22.) 28
1 At step two of the sequential evaluation process, Plaintiff has the burden to show 2 she has one or more “severe” medically determinable impairments that can be expected 3 ||to result in death or last for a continuous period of at least twelve months. See Bowen v. 4 || Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting claimant bears burden at step two); Celaya 5 ||v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003) (same). To establish that a medically 6 ||determinable impairment is “severe,” the claimant must show that it “significantly limits 7 [her] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 8 ||416.920(c). 9 When there is evidence of a mental impairment that allegedly prevents a claimant 10 from working, the Social Security Administration has supplemented the five-step 11 sequential evaluation process with additional regulations to assist the ALJ in determining 12 ||the severity of mental impairments. Maier v. Comm’r of Soc. Sec., 154 F.3d 913, 914-915 13 Cir. 1998) (per curiam) (citing 20 C.F.R. § 416.920a). First, the ALJ must determine 14 ||the presence or absence of certain medical findings relevant to the claimant’s ability to 15 |twork. 20 C.F.R §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant 16 || establishes these medical findings, the ALJ must rate the degree of functional loss resulting 17 from the impairment by considering four areas of function: (1) daily activites; (2) social 18 || functioning; (3) concentration, persistence or pace; and (4) the ability to adapt or manage 19 jjoneself. Jd., at §§ 404.1520a(c)(2)-(4), 416.920a(c)(2)-(4). Third, after rating the degree 20 ||of functional loss, the ALJ must determine whether the claimant has a severe mental 21 |/impairment. /d., at §§ 404.1520a(d)(2), 416.920a(d). Fourth, when a mental impairment 22 found to be severe, the ALJ must determine if it meets or equals a listing in 20 C.F.R. 23 404, Subpart P, Appendix 1. /d., at §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, ifa 24 || listing is not met, the ALJ must then assess the claimant’s RFC, and the ALJ’s decision 25 ||“must incorporate the pertinent findings and conclusions” regarding the claimant’s mental 26 ||impairment, including a specific finding as to the degree of limitation as to each of the 27 || functional areas described in 20 C.F.R. §§ 404.1520a(c)(3) and 416.920a(c)(3). Jd., at §§ 28 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2).
1 The areas of function are rated on a five-point scale: (1) none; (2) mild; (3) moderate; 2 ||(4) marked; and (5) extreme. /d., at §§ 404.1520a(c)(4), 416.920a(c)(4). If the degree of 3 ||limitation is rated as “none” or “mild,” then it will generally be concluded that the 4 ||impairment is not severe. /d., at §§ 404.1520a(d)(1), 416.1920a(d)(1). 5 However, for purposes of step two of the sequential evaluation, “[a]n impairment or 6 ||combination of impairments may be found ‘not severe only if the evidence establishes a 7 slight abnormality that has no more than a minimal effect on an individual’s ability to 8 || work.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal citation omitted) 9 ||(emphasis in original). By its own terms, step two is a de minimis test intended to weed 10 out only the most minor impairments. Bowen, 482 U.S. at 153-154; Edlund v. Massanari, 11 F.3d 1152, 1158 (9th Cir. 2001) (stating step two inquiry is a de minimis screening 12 || device to dispose of groundless claims). Thus, an ALJ’s conclusion that a claimant lacks 13 medically severe impairment must be supported by “clearly established medical 14 jlevidence.” Webb, 433 F.3d at 687 (internal citation omitted). 15 Here, the ALJ evaluated Plaintiff's mental impairments and concluded Plaintiff has 16 mild limitations in each of the four areas of function. (AR, at 27.) With respect to 17 ||the first functional area—understanding, remembering or applying information—the ALJ 18 ||found Plaintiff has only a mild limitation because Plaintiff is “able to cook, go[] to 19 ||appointments, [and] fill out applications for General Relief].]” (d.) As to the second 20 || functional area—interacting with others—the ALJ found Plaintiff has only a mild 21 || limitation because Plaintiff's Function Report states that Plaintiff “talks with people every 22 || day[,]” and Plaintiffs consultative examinations demonstrated Plaintiff “made good eye 23 ||contact and was cooperative.” (/d.) As to the third functional area—concentrating, 24 || persisting or maintaining pace—the ALJ found Plaintiff has only a mild limitation because 25 Plaintiff's chief hobbies are watching television or reading, activities which “require at 26 least a modicum of ability to concentrate and attend.” (d.) As to the fourth and final 27 || functional area—adapting or managing oneself—the ALJ found Plaintiff has no limitation 28 || because Plaintiff “has no issues with self-care[,]” Plaintiff testified that she is homeless but 10
1 || actually lives with her mother, and Plaintiff reported “she is able to go out alone, shop, and 2 || use a bicycle for transportation.” (/d.) 3 While the ALJ followed the steps to evaluate the severity of Plaintiff's mental 4 ||impairments, the ALJ committed error by ignoring treatment records which undermined 5 conclusion. See Garrison, supra, 759 F.3d at 1013 (finding ALJ committed error, in 6 || part, by ignoring treatment records which corroborated claimant’s allegation of disability). 7 || As outlined below, the record as a whole contains evidence of an impairment sufficient to 8 the de minimis threshold of step two. Lingenfelter, supra, 504 F.3d at 1035; Webb, 9 F.3d at 687. As such, the ALJ’s conclusion that Plaintiff lacks a medically severe 10 || mental impairment is not supported by “clearly established medical evidence.” Webb, 433 11 || F.3d at 687. 12 Notably, the ALJ did summarize some treatment notes relating to Plaintiff's mental 13 || functioning. Summarizing a November 5, 2014 treatment note, the ALJ stated: 14 [o]f note, the claimant was well groomed, and had good eye contact and was 15 wearing ‘decorative contacts.’ Her mood was depresse[d], and affect flat. Her thought process was normal and direct. She contradicted her earlier report by 16 stating that a year ago she hear[d] voices telling her not to listen to a person 7 she would be talking to, or that a person ‘isn’t worth it,’ people calling her name[s], and indicated that she had a voice tell her to ‘jump off a bridge’ one 18 year prior, ‘but not currently.” The claimant was alert and oriented, but had 19 poor insight and judgment. The examiner deemed her reliability “poor.” 20 || (AR, at 26.) 21 The ALJ also summarized the relevant results of an August 28, 2016 Psychiatric 22 || Consultative Examination as follows: 23 [t]he claimant complained of depression. She alleged panic attacks and feeling hyperactive. She reported auditory hallucinations and feeling paranoid. The claimant reported a depressed mood, insomnia, decreased 25 appetite and energy... . In the examination, she made good eye contact and 6 was neatly groomed. She was coherent and organized. Her mood was depressed and her affect was dysphoric. However, she was not tearful... . 27 She was alert and oriented. Her recall and memory were largely intact, but 28 she did need hints on testing. She was able to perform Serial 3s, and spell the
1 word WORLD backwards and forwards. The diagnostic impression was of . > . . anxiety disorder, NOS, Psychotic Disorder, NOS and Bipolar Disorder NOS. 3 4 at 26-27.) 5 However, the ALJ did not account for a February 26, 2016 mental status exam which 6 ||indicated more than mild functional limitations. (AR, at 452-453.) This exam revealed 7 ||Plaintiffs level of consciousness was lethargic, her speech was loud and pressured, her 8 || behavior was evasive, her affect was restricted, her mood was irritable, depressed, and 9 ||anxious, she showed poor remote memory and an inability to concentrate, her motor 10 |/function was agitated, and she suffered from daily auditory, visual, and tactile 11 |\hallucinations. Ud.) After that exam, Plaintiff was diagnosed with unspecified affective 12 || disorder and psychotic disorder not due to a substance. (AR, at 457.) The ALJ also failed 13 account for another mental status exam on February 29, 2016, which showed Plaintiff 14 a depressed and anxious mood and suffered from auditory and visual hallucinations. 15 (AR, at 465-466.) 16 The fact that Plaintiff made some improvements in mental functioning from the 17 || February 2016 exams to the August 2016 consultative exam does not mean Plaintiff does 18 ||not suffer from an impairment which affects her ability to function in the workplace. 19 || Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Rather, “such observations must 20 ||be read in context of the overall diagnostic picture... .” Jd. (internal citations and 21 || quotations omitted). On various occasions, Plaintiff suffered from visual, auditory and 22 tactile hallucinations; Plaintiffs mood and affect were abnormal, irritable, depressed or 23 |janxious; and Plaintiffs diagnoses include various mental health disorders. (AR, at 322- 24 || 328, 452-453, 465-466.) Considering the record as a whole, the de minimis test of severity 25 || with respect to Plaintiff's mental impairments is satisfied such that the ALJ’s decision is 26 || based upon legal error. Bowen, 482 U.S. at 153-154; Edlund, 253 F.3d at 1158. 27 28 12
1 i. Harmless Error & Remedy 2 An ALJ’s error is harmless where the mistake is nonprejudicial to the plaintiff or 3 irrelevant to the ALJ’s ultimate disability conclusion. Stout v. Comm’r Soc. Sec. Admin., 4 F.3d 1050, 1055 (9th Cir. 2006). Importantly, “a reviewing court cannot consider the 5 j/error harmless unless it can confidently conclude that no reasonable ALJ .. . could have 6 ||reached a different disability determination.” Jd. Applicable here, an error at the step two 7 |jevaluation may be considered harmless if an ALJ extensively discusses the claimant’s 8 ||impairment at step four. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (citation 9 || omitted). 10 Here, the ALJ discussed Plaintiff's mental impairments in the RFC analysis which 11 |/is incorporated in the step four determination. (AR, at 30-32.) However, the ALJ’s failure 12 consider objective medical evidence from the February 2016 mental status exams may 13 ||have prejudiced the ALJ’s findings at steps four and five. Thus, the ALJ’s error is not 14 |/harmless, and the case must be remanded. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 15 || 1984) (remand for further proceedings is appropriate where additional proceedings could 16 ||remedy defects in the ALJ’s decision); see also Harman v. Apfel, 211 F.3d 1172, 1179 (9th 17 || Cir. 2000). Upon remand, the ALJ must conduct a supplemental evaluation of the mental 18 ||impairment evidence, and incorporate his findings into any future decision. 19 Vil. CONCLUSION 20 Based on the foregoing, the Court finds that the ALJ’s decision as to the severity of 21 || Plaintiff's mental impairment lacks substantial evidence, and Plaintiff is entitled to remand 22 that ground only. Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff's Motion 23 ||for Summary Judgement is GRANTED IN PART and DENIED IN PART; (2) 24 || Defendant’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN 25 ||PART; and (3) the matter shall be REMANDED to the Commissioner for further 26 || proceedings consistent with this Order. The Clerk of Court shall enter Judgment 27 accordingly. 28 13
1 || DATE: January 6, 2020 2 a 3 HON. RUTH BERMUDEZ MONTENEGRO 4 ~ UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14