Diaz v. Colvin, No. 1:2014cv03081 - Document 26 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER. Order granting 14 Plaintiff's Motion for Summary Judgment; denying 21 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Victor E. Bianchini. (MO, Courtroom Deputy)
Download PDF
<![CDATA[
Diaz v. Colvin Doc. 26 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 Case No. 1:14-CV-03081-VEB 8 ANNE DIAZ, 9 Plaintiff, DECISION AND ORDER 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In February of 2011, Plaintiff Anne Diaz applied for Disability Insurance 16 Benefits (“DIB”) under the Social Security Act. The Commissioner of Social 17 Security denied the application. 18 19 20 1 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB Dockets.Justia.com 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 7). 5 On January 30, 2015, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 16). 8 II. BACKGROUND 9 The procedural history may be summarized as follows: 10 Plaintiff applied for DIB on February 11, 2011. (T at 140).1 The application 11 was denied initially and on reconsideration and Plaintiff requested a hearing before 12 an Administrative Law Judge (“ALJ”). On October 10, 2012, a hearing was held 13 before ALJ Laura Valente. (T at 35). Plaintiff appeared with her attorney and 14 testified. (T at 38-56). The ALJ also received testimony from Trevor Duncan, a 15 vocational expert (T at 57-60). 16 On November 2, 2012, the ALJ issued a written decision denying the 17 application for benefits and finding that Plaintiff was not entitled to DIB. (T at 15- 18 30). The ALJ’s decision became the Commissioner’s final decision on May 6, 2014, 19 1 20 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 when the Social Security Appeals Council denied Plaintiff’s request for review. (T 2 at 1-6). 3 On June 10, 2014, Plaintiff, acting by and through her counsel, timely 4 commenced this action by filing a Complaint in the United States District Court for 5 the Eastern District of Washington. (Docket No. 4). The Commissioner interposed 6 an Answer on August 12, 2014. (Docket No. 10). 7 Plaintiff filed a motion for summary judgment on November 24, 2014. 8 (Docket No. 14). The Commissioner moved for summary judgment on February 9, 9 2015. (Docket No. 21). Plaintiff filed a reply brief on February 23, 2015. (Docket 10 No. 24). 11 12 For the reasons set forth below, the Commissioner’s motion is denied, Plaintiff’s motion is granted, and this case is remanded for further proceedings. 13 14 III. DISCUSSION A. Sequential Evaluation Process 15 The Social Security Act (“the Act”) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 3 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 plaintiff shall be determined to be under a disability only if any impairments are of 2 such severity that a plaintiff is not only unable to do previous work but cannot, 3 considering plaintiff’s age, education and work experiences, engage in any other 4 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether plaintiff has a 12 medially severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If plaintiff does not have a severe impairment or combination of impairments, 15 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 16 the third step, which compares plaintiff’s impairment with a number of listed 17 impairments acknowledged by the Commissioner to be so severe as to preclude 18 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 19 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 20 4 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 2 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 3 step, which determines whether the impairment prevents plaintiff from performing 4 work which was performed in the past. If a plaintiff is able to perform previous work 5 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 7 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 8 the process determines whether plaintiff is able to perform other work in the national 9 economy in view of plaintiff’s residual functional capacity, age, education and past 10 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 11 Yuckert, 482 U.S. 137 (1987). 12 The initial burden of proof rests upon plaintiff to establish a prima facie case 13 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 14 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 15 met once plaintiff establishes that a mental or physical impairment prevents the 16 performance of previous work. The burden then shifts, at step five, to the 17 Commissioner to show that (1) plaintiff can perform other substantial gainful 18 activity and (2) a “significant number of jobs exist in the national economy” that 19 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 20 5 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 7 determination that a plaintiff is not disabled will be upheld if the findings of fact are 8 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 9 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 10 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 11 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 12 Substantial evidence “means such evidence as a reasonable mind might accept as 13 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 14 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 15 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 16 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 17 whole, not just the evidence supporting the decision of the Commissioner. Weetman 18 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 19 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or nondisability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ found that Plaintiff met the insured status requirements of the Social 14 Security Act through December 31, 2015. The ALJ determined that Plaintiff had not 15 engaged in substantial gainful activity (“SGA”) since February 2, 2010. The ALJ 16 found that Plaintiff’s degenerative disc disease of the lumbar spine and obesity were 17 “severe” impairments under the Act. (Tr. 20). 18 19 20 7 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 However, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the impairments 3 set forth in the Listings. (T at 21). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform light work. (T at 21). In particular, the ALJ found that Plaintiff 6 could lift/carry 20 pounds occasionally and 10 pounds frequently; sit 30 minutes at 7 one time (after which she would need to stand for a few minutes); sit for 6 hours in 8 an 8-hour workday; stand/walk for a combination of 6 hours in an 8-hour workday; 9 occasionally stoop, kneel, crawl and crouch; frequently balance and climb ramps and 10 stairs; never climb ladders, ropes or scaffolds; and avoid concentrated exposure to 11 hazards such as working at heights. (T at 21-22). 12 The ALJ concluded that Plaintiff could perform her past relevant work as a 13 cashier, insurance clerk, and general office clerk. (T at 24-26). As such, the ALJ 14 concluded that Plaintiff was not disabled, as defined under the Social Security Act, 15 between February 2, 2010 (which the ALJ determined to be the alleged onset date) 16 and November 2, 2012 (the date of the decision) and was therefore not entitled to 17 benefits. (Tr. 26-27). 18 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 19 for review. (Tr. 1-6). 20 As noted above, the ALJ’s decision became the 8 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 D. Plaintiff’s Arguments Plaintiff contends that the Commissioner’s decision should be reversed. She 2 3 offers two (2) principal arguments in support of this position. 4 challenges the ALJ’s credibility analysis. Second, Plaintiff argues that the ALJ 5 failed to consider the impact of her diabetes when assessing her RFC. This Court 6 will examine both arguments in turn. 7 8 First, Plaintiff IV. ANALYSIS A. Credibility 9 A claimant’s subjective complaints concerning his or her limitations are an 10 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 11 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 12 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 13 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). “General findings are insufficient: 14 rather the ALJ must identify what testimony is not credible and what evidence 15 undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 16 12 F.3d 915, 918 (9th Cir. 1993). 17 In this case, Plaintiff testified as follows: 18 She lives with her son (14) at the home of a friend. (T at 38). She cooks 19 “sometimes” and attends to household chores as best she can. (T at 39). She lost her 20 9 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 last full-time job on February 1, 2010, when her employer went out of business. (T 2 at 40-41). 3 received them until December of 2011. (T at 41). At the time of the hearing, 4 Plaintiff was working part-time at a community job provided by a program called 5 “People for People.” (T at 42-43). She worked as a receptionist, answering the 6 phone, entering data, and assisting customers. (T at 43). Her work hours are limited 7 to 20 hours per week due to back and tailbone pain. (T at 43). She works from 1-5 8 in the afternoon and is able to move around after sitting for 15-20 minute 9 increments. (T at 45). She does back stretches, which provide some relief. (T at 48). 10 She needs to lay down during the day due to overwhelming back pain. (T at 53). 11 She usually lays down for two and a half hours in the morning and the same amount 12 of time at night before bed. (T at 53). Work causes severe pain back pain. (T at 53- 13 54). She cannot lift much and has difficulty handling objects with her right hand. (T 14 at 54). She needs frequent rest breaks. (T at 55). She applied for unemployment benefits after she was laid off and 15 The ALJ found that Plaintiff’s medically determinable impairments could 16 cause the alleged symptoms, but concluded that her statements concerning the 17 intensity, persistence, and limiting effects of those symptoms were not credible to 18 the extent alleged. (T at 22). In particular, the ALJ concluded that Plaintiff’s claim 19 20 10 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 that she needed to lay down during the day was not consistent with the evidence. (T 2 at 22). 3 1. 4 The ALJ’s credibility assessment was undermined by a discrepancy with 5 regard to the alleged onset date. The ALJ identified the alleged onset date as 6 February 2, 2010. (T at 18, 20, 26). This is the onset date indicated on a disability 7 report completed in March of 2011 by an interviewer identified as “G. Halliday.” (T 8 at 157, 161). However, Plaintiff’s application for DIB, dated February 14, 2011, 9 lists an alleged onset date of October 1, 2010. (T at 140). Onset Date Discrepancy 10 At the outset of the hearing, the ALJ referenced the February 2, 2010 onset 11 date. (T at 35). Plaintiff’s counsel immediately made the following statement “Your 12 honor, when [Plaintiff] applied for benefits . . ., she actually alleged an onset date… 13 of October 1, 2010, and would like to revise the date that Social Security put down 14 because that’s not the correct date. It should be October 1, 2010.” (T at 35). The 15 ALJ responded: “All right.” (T at 35). However, the ALJ then repeatedly referenced 16 the February 2, 2010 alleged onset date in her decision (T at 18, 20, 26) without 17 addressing the discrepancy. 18 19 20 11 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 The issue becomes important when the ALJ’s reasons for discounting 2 Plaintiff’s credibility are considered. First, the ALJ noted that Plaintiff’s “last full 3 time work ended due to the business closing, not her impairments.” (T at 22-23). 4 In general, the fact that a claimant stopped working for reasons other than the 5 alleged impairments is a valid reason for the ALJ to discount the claimant’s 6 credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). However, this 7 was only a valid reason for discounting Plaintiff’s credibility if, in fact, she alleged 8 that she stopped working because of her disability. Plaintiff’s counsel advised the 9 ALJ that Plaintiff “last worked in February 1, 2010, but that job didn’t end because 10 of her impairments. She didn’t start having her back impairments until October of 11 2010.” (T at 35). Plaintiff then testified that she lost her job in February of 2010 12 because of the company’s financial problems and explained that she applied for 13 unemployment benefits shortly thereafter. (T at 41). If Plaintiff’s job loss occurred 14 prior to her alleged onset of disability, as she and her counsel asserted at the hearing, 15 then one of the reasons cited by the ALJ for discounting Plaintiff’s credibility cannot 16 be sustained. 17 Second, the ALJ noted that Plaintiff applied for unemployment insurance 18 benefits (which required that Plaintiff certify an ability to work) and then discounted 19 20 12 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 Plaintiff’s credibility based on the fact that “her alleged onset date and much of the 2 relevant period includes time she received unemployment.” (T at 23). 3 A claimant’s receipt of unemployment benefits after the alleged onset date 4 may “undermine a claimant's alleged inability to work fulltime.” Carmickle v. 5 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008). However, “the 6 mere receipt of employment benefits is insufficient to support the ALJ's adverse 7 credibility finding without evidence that the claimant asserted he could work 8 fulltime.” Anderson v. Colvin, No. 13-cv-00496, 2015 U.S. Dist. LEXIS 32089, at 9 *8 (D. Idaho Mar. 16, 2015). 10 Moreover, the issue should be considered carefully. In a memorandum dated 11 November 15, 2006, Chief Social Security ALJ Frank Cristaudo wrote: “This is a 12 reminder that the receipt of unemployment insurance benefits does not preclude the 13 receipt of Social Security disability benefits. The receipt of unemployment benefits 14 is only one of many factors that must be considered in determining whether the 15 claimant is disabled.” In a follow-up memorandum dated August 9, 2010, Judge 16 Cristaudo restated the position of the Social Security Administration that 17 “individuals need not choose” between applying for the two types of benefits, and 18 explained that “ALJs should look at the totality of circumstances in determining the 19 significance of the application for unemployment benefits and related efforts to 20 13 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 obtain employment.” See Cook v. Astrue, No. 11-1625, 2012 U.S. Dist. LEXIS 2 68401, at *10-*11 (D.S.C. April 19, 2012). 3 Here, Plaintiff applied for unemployment benefits right after she lost her job 4 in February of 2010. (T at 41). She advised the unemployment office that she could 5 perform office work and as a cashier. (T at 41-42). The ALJ asked whether Plaintiff 6 notified “employment security that [she] would not be able to work full-time or that 7 [she] had … medical problems.” (T at 42). Plaintiff said she had not provided any 8 such notification. (T at 42). 2 According to Plaintiff, she could perform full-time 9 work between February of 2010 (when she applied for unemployment benefits) and 10 October 1, 2010 (when she began experiencing severe problems with her back). (T at 11 35, 49). Plaintiff’s unemployment benefits expired in December 2011. (T at 41). 12 The ALJ noted Plaintiff’s testimony that she “did not update” her information 13 with the unemployment office “because at the time she filled out the application she 14 did not have back problems.” (T at 23). However, the ALJ then faulted Plaintiff for 15 “misrepresenting her work/disability situation and telling agencies whatever she 16 needs to say in order to obtain benefits.” (T at 23). It appears this was based on the 17 ALJ’s acceptance of February 2, 2010 as the alleged onset date. However, this 18 2 19 20 It is not clear from the record whether Plaintiff affirmatively told the unemployment office that she could perform full-time work after October 1, 2010. 14 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 ignores the explanation advanced by Plaintiff that she was not disabled when she 2 originally applied for unemployment benefits and did not begin experiencing 3 disabling back pain until the October 1st date. 4 The Commissioner attempts to avoid the implications of the onset date 5 discrepancy by arguing that the ALJ did not accept Plaintiff’s effort to “correct” the 6 onset date. In other words, according to the Commissioner, the ALJ (a) believed 7 that Plaintiff did, in fact, allege disability beginning February 2, 2010, and then (b) 8 rejected Plaintiff’s attempt to change the onset date to October 1, 2010. This may, in 9 fact, be what the ALJ believed, but no such rationale is set forth in the decision. As 10 discussed above, the ALJ acknowledged the date clarification by Plaintiff’s counsel 11 during the administrative hearing without any apparent objection (T at 35), but then 12 repeatedly referenced the February date (T at 18, 20, 26) without explaining why 13 that date was chosen at the “correct” alleged on date. “Long-standing principles of 14 administrative law require us to review the ALJ's decision based on the reasoning 15 and factual findings offered by the ALJ — not post hoc rationalizations that attempt 16 to intuit what the adjudicator may have been thinking.” Bray v. Comm'r, 554 F.3d 17 1219, 1226 (9th Cir. 2009). 18 As discussed above, this gap cannot be considered harmless. The ALJ found 19 that Plaintiff’s reason for losing her job (her employer’s financial problems) was 20 15 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 inconsistent with her supposedly contemporaneous claim of disability. The ALJ also 2 faulted Plaintiff for applying for unemployment benefits at a time when she was 3 supposedly also claiming to be disabled. However, the effect of both of these 4 findings is diminished (if not eliminated) if one accepts the October 2010 onset date. 5 As such, the resolution of the onset date discrepancy is material to the assessment of 6 Plaintiff’s credibility. 7 accordingly requires a remand. The ALJ’s failure to explicitly resolve that discrepancy 8 2. 9 The ALJ discounted Plaintiff’s testimony that she needed to lay down during 10 the day by noting that she worked for 20 hours a week and could perform her 11 activities of daily living independently. (T at 22). However, Plaintiff only works 12 from 1-5pm at her community job. (T at 45). This allows her to lie down during the 13 morning and evening. Plaintiff testified that she spends “two, two and a half hours in 14 the morning, maybe two and a half hours at night” lying down. (T at 53). She lays 15 down upon returning home from work “[b]ecause my back hurts real bad.” (T at 54). 16 Her part-time work for a non-profit company is financed through grants and 17 provides her with flexibility in terms of her movements. (T at 45). 18 nevertheless in pain “most of the time” while at work. (T at 54). These facts are not 19 inconsistent with Plaintiff’s allegation that her back pain precludes full-time 20 16 Activities DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB She is 1 employment. Moreover, Plaintiff’s activities of daily living - limited grocery 2 shopping, some cooking and light household (T at 39) – are likewise not inconsistent 3 with her testimony regarding disabling pain. 4 The Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff 5 has carried on certain daily activities ... does not in any way detract from her 6 credibility as to her overall disability." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 7 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). “The 8 Social Security Act does not require that claimants be utterly incapacitated to be 9 eligible for benefits, and many home activities are not easily transferable to what 10 may be the more grueling environment of the workplace, where it might be 11 impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 12 603 (9th Cir. 1989). 13 Recognizing that “disability claimants should not be penalized for attempting 14 to lead normal lives in the face of their limitations,” the Ninth Circuit has held that 15 “[o]nly if [her] level of activity were inconsistent with [a claimant’s] claimed 16 limitations would these activities have any bearing on [her] credibility.” Reddick v. 17 Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citations omitted); see also Bjornson v. 18 Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(“The critical differences between 19 activities of daily living and activities in a full-time job are that a person has more 20 17 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 flexibility in scheduling the former than the latter, can get help from other persons . . 2 ., and is not held to a minimum standard of performance, as she would be by an 3 employer. The failure to recognize these differences is a recurrent, and deplorable, 4 feature of opinions by administrative law judges in social security disability 5 cases.”)(cited with approval in Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 6 2014)). 7 8 This aspect of the ALJ’s decision should also be revisited on remand. B. Diabetes 9 At step two of the sequential evaluation process, the ALJ must determine 10 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 11 416.920(c). The fact that a claimant has been diagnosed with and treated for a 12 medically determinable impairment does not necessarily mean the impairment is 13 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 14 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 15 1985). To establish severity, the evidence must show the diagnosed impairment 16 significantly limits a claimant's physical or mental ability to do basic work activities 17 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 18 The step two analysis is a screening device designed to dispose of de minimis 19 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 20 18 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 is found not severe . . . when medical evidence establishes only a slight abnormality 2 or a combination of slight abnormalities which would have no more than a minimal 3 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 4 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 5 the “severity requirement cannot be satisfied when medical evidence shows that the 6 person has the ability to perform basic work activities, as required in most jobs.” 7 SSR 85-28. Basic work activities include: “walking, standing, sitting, lifting, 8 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 9 understanding, carrying out and remembering simple instructions; responding 10 appropriately to supervision, coworkers, and usual work situation.” Id. 11 In this case, the ALJ noted that Plaintiff has the medically determinable 12 impairment of diabetes mellitus. (T at 21). However, the ALJ concluded that there 13 was no record evidence of limitations arising from this condition and, as such, it was 14 found to be non-severe. (T at 21). 15 This finding was not supported by substantial evidence. The record indicated 16 that Plaintiff’s diabetes caused numbness and paresthesia in her extremeties. (T at 17 208, 210, 213, 214, 239, 243, 248, 249). 18 assistant, described Plaintiff’s diabetes as “uncontrolled.” (T at 213). The ALJ did 19 not adequately address this evidence and did not include any limitations with regard 20 19 Greg Bickel, a treating physician’s DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB 1 to the use of extremities when determining Plaintiff’s RFC. This issue should 2 likewise be revisited on remand. 3 C. Remand 4 In a case where the ALJ's determination is not supported by substantial 5 evidence or is tainted by legal error, the court may remand the matter for additional 6 proceedings or an immediate award of benefits. Remand for additional proceedings 7 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 8 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 9 F.3d 587, 593 (9th Cir. 2004). 10 Here, the ALJ’s decision is not supported by substantial evidence. 11 particular, the ALJ did not resolve the onset date discrepancy, which undermines the 12 decision to discount Plaintiff’s credibility. In addition, the ALJ did not adequately 13 address the evidence concerning Plaintiff’s diabetes. However, there is evidence in 14 the record to support the ALJ’s decision, including the consultative examination of 15 Dr. Brett Norman, who opined that Plaintiff’s low back pain did not impose any 16 limitation for 12 continuous months. (T at 233). Accordingly, a remand for further 17 proceedings is the appropriate remedy. On remand, the ALJ should resolve the 18 onset date discrepancy, re-evaluate Plaintiff’s credibility in light of the 19 20 20 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB In 1 considerations outlined above, and reconsider the evidence concerning Plaintiff’s 2 diabetes 3 4 5 IV. ORDERS IT IS THEREFORE ORDERED that: 6 Plaintiff’s motion for summary judgment, Docket No. 14, is GRANTED. 7 The Commissioner’s motion for summary judgment, Docket No. 21, is 8 9 10 11 12 DENIED. This case is remanded for further proceedings. The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of Plaintiff, and close this case. DATED this 27th day of May, 2015. 13 14 15 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 DECISION AND ORDER – DIAZ v COLVIN 14-CV-03081-VEB
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
