Shilow v. Saul, No. 1:2020cv03010 - Document 19 (E.D. Wash. 2020)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 17 ). File closed. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)

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Shilow v. Saul Doc. 19 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.829 Page 1 of 24 1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jun 24, 2020 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 CAROLYN S.,1 No. 1:20-cv-03010-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 17 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 17. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 19 1 To protect the privacy of plaintiffs in social security cases, the undersigned identifies them by only their first names and the initial of their last names. See LCivR 5.2(c). 20 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.830 Page 2 of 24 1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 2 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 17. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.831 Page 3 of 24 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 Case 1:20-cv-03010-MKD 1 ECF No. 19 filed 06/24/20 PageID.832 Page 4 of 24 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. Id. 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude 18 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 20 2 ORDER - 4 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.833 Page 5 of 24 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.834 Page 6 of 24 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. Id. 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national e r. 15. As such, the ALJ’s analysis 16 primarily considered Plaintiff’s lack of treatment in the two years prior to the 17 alleged onset date. The ALJ also considered Plaintiff’s lack of orthopedic 18 treatment between May 2016 and May 2017. Tr. 25. Plaintiff was seen for care 19 for her knee, though not by an orthopedist, after falling on her knee in January 20 2017, Tr. 564, during which she was referred again to an orthopedist, Tr. 569. 2 ORDER - 11 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.840 Page 12 of 24 1 Plaintiff then was seen for orthopedic care for her knee in March 2017, during 2 which the provider noted Plaintiff had not received symptom relief from a brace, 3 injections, or medication, and surgery was recommended as Plaintiff was unable to 4 stand, walk, or drive her car for any length of time due to her left knee pain. Tr. 5 406-07. Plaintiff’s lack of treatment for her knee for less than eight months during 6 the relevant adjudicative period is not a clear and convincing reason to reject 7 Plaintiff’s symptom claims, particularly when Plaintiff required a total knee 8 arthroplasty when she returned to orthopedic care. The ALJ also does not point to 9 any other gaps in treatment for any of Plaintiff’s other impairments. The ALJ’s 10 finding is not supported by substantial evidence in the record; thus it was not a 11 clear and convincing reasons to reject Plaintiff’s symptom complaints. 12 2. Improvement with Treatment 13 The ALJ found Plaintiff’s symptom claims were inconsistent with her 14 improvement after surgery for her left knee impairment. Tr. 25. The effectiveness 15 of treatment is a relevant factor in determining the severity of a claimant’s 16 symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011); Warre v. Comm’r 17 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (determining that 18 conditions effectively controlled with medication are not disabling for purposes of 19 determining eligibility for benefits); Tommasetti v. Astrue, 533 F.3d 1035, 1040 20 2 ORDER - 12 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.841 Page 13 of 24 1 (9th Cir. 2008) (recognizing that a favorable response to treatment can undermine a 2 claimant’s complaints of debilitating pain or other severe limitations). 3 The ALJ noted the medical records did not demonstrate ongoing knee pain 4 or significant functional limitations due to Plaintiff’s knee impairment after 5 Plaintiff’s surgery. Tr. 25. As argued by Plaintiff, the cited records are for 6 appointments when Plaintiff sought treatment for other impairments including her 7 carpal tunnel syndrome and spine impairment. ECF No. 19 at 18 (citing Tr. 600, 8 611, 616). Plaintiff continued having stiffness in her knee six months after 9 surgery, Tr. 623, and required pain medications for treatment for her knee 10 impairment almost one year after the operation, Tr. 605-08. Further, the ALJ does 11 not argue that Plaintiff had improvement in her symptoms after her cervical spine 12 surgery, and acknowledged Plaintiff had continued moderate degenerative disc 13 disease even after her cervical fusion. Tr. 26 (Tr. 664). Similarly, the ALJ noted 14 Plaintiff had continued symptoms after her remote ankle surgery, Tr. 25-26 (citing 15 Tr. 513), and Plaintiff received only “some” relief to her carpal tunnel symptoms 16 with treatment, Tr. 26 (Tr. 611). The ALJ’s finding is not supported by substantial 17 evidence in the record; thus, it was not a clear and convincing reasons to reject 18 Plaintiff’s symptom complaints 19 20 2 ORDER - 13 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.842 Page 14 of 24 1 3. Inconsistent Objective Medical Evidence 2 The ALJ found Plaintiff’s symptom claims were inconsistent with the 3 objective medical evidence. Tr. 24-26. An ALJ may not discredit a claimant’s 4 symptom testimony and deny benefits solely because the degree of the symptoms 5 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 6 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 7 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 8 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 9 relevant factor, along with the medical source’s information about the claimant’s 10 pain or other symptoms, in determining the severity of a claimant’s symptoms and 11 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 12 416.929(c)(2). 13 As the Court finds the only other reasons given by the ALJ to reject 14 Plaintiff’s statement were not supported, the ALJ’s sole remaining reason of 15 Plaintiff’s statements being inconsistent with the objective medical evidence 16 cannot be upheld. See Burch, 400 F.3d at 680-81. As such, the ALJ erred in his 17 consideration of Plaintiff’s symptom claims. On remand, the ALJ is instructed to 18 reconsider Plaintiff’s symptom complaints and incorporate the reported limitations 19 into the RFC or give clear and convincing reasons, supported by substantial 20 evidence, to reject Plaintiff’s claims. 2 ORDER - 14 Case 1:20-cv-03010-MKD 1 2 ECF No. 19 filed 06/24/20 PageID.843 Page 15 of 24 B. Medical Opinion Evidence Plaintiff contends the ALJ erred in his consideration of the medical opinions 3 of William Drenguis, M.D., Howard Platter, M.D., Norman Staley, M.D., Patrick 4 Metoyer, Ph.D., and John Anderson, Ph.D. ECF No. 14 at 5-17. 5 There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 10 Generally, a treating physician’s opinion carries more weight than an examining 11 physician’s, and an examining physician’s opinion carries more weight than a 12 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 13 to opinions that are explained than to those that are not, and to the opinions of 14 specialists concerning matters relating to their specialty over that of 15 nonspecialists.” Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, the ALJ 17 may reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “However, the ALJ need not accept the opinion of any physician, including a 20 treating physician, if that opinion is brief, conclusory and inadequately supported 2 ORDER - 15 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.844 Page 16 of 24 1 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 3 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 4 may only reject it by providing specific and legitimate reasons that are supported 5 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8306 31). The opinion of a nonexamining physician may serve as substantial evidence if 7 it is supported by other independent evidence in the record. Andrews v. Shalala, 8 53 F.3d 1035, 1041 (9th Cir. 1995). 9 10 1. Dr. Metoyer Dr. Metoyer performed a psychological consultative examination on July 16, 11 2017, and rendered an opinion on Plaintiff’s functioning. Tr. 530-34. Dr. Metoyer 12 diagnosed Plaintiff with unspecified anxiety disorder. Tr. 533. Dr. Metoyer 13 opined Plaintiff’s remote memory and ability to interact with coworkers and the 14 public are mildly impaired; her ability to complete a normal workday/workweek is 15 moderately impaired; and her ability to handle the usual stress encountered in the 16 workplace is markedly impaired if it requires persistence with tasks or interactions 17 with others. Tr. 533. He further opined Plaintiff is able to reason, understand, and 18 adapt, her recent and immediate memory is intact, concentration/persistence are 19 adequate, and stated Plaintiff reported difficulties completing some tasks and 20 engaging interpersonally. Id. The ALJ gave Dr. Metoyer’s opinion partial weight. 2 ORDER - 16 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.845 Page 17 of 24 1 Tr. 21. As Dr. Metoyer’s opinion is contradicted by the opinion of Dr. Gilbert, Tr. 2 106, the ALJ was required to give specific and legitimate reasons, supported by 3 substantial evidence, to reject Dr. Metoyer’s opinion. See Bayliss, 427 F.3d at 4 1216. 5 The ALJ found Dr. Metoyer’s opinion that Plaintiff has marked limitations 6 in adapting to stress was based on Plaintiff’s subjective statements. Tr. 21. A 7 physician’s opinion may also be rejected if it is too heavily based on a claimant’s 8 properly discounted complaints. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 9 Cir. 2001). As the ALJ erred in his consideration of Plaintiff’s symptom 10 complaints, this was not a specific and legitimate reason to reject Dr. Metoyer’s 11 opinion. While the ALJ offered an additional reason to reject Dr. Metoyer’s 12 opinion, the Court finds the ALJ’s error in the analysis of Dr. Metoyer’s opinion is 13 not harmless. As the case is being remanded to reconsider Plaintiff’s symptom 14 complaints, on remand, the ALJ is also instructed to reconsider Dr. Metoyer’s 15 opinion and incorporate the limitations into the RFC or give specific and legitimate 16 reasons, supported by substantial evidence, to reject the opinion. 17 2. Dr. Drenguis 18 On June 22, 2017, Dr. Drenguis performed a physical consultative 19 examination and rendered an opinion on Plaintiff’s functioning. Tr. 513-18. Dr. 20 Drenguis diagnosed Plaintiff with left knee pain with left total knee arthroplasty, 2 ORDER - 17 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.846 Page 18 of 24 1 right knee degenerative joint disease, right ankle posttraumatic degenerative joint 2 disease, left hip internal derangement, mid-back pain, and asthma. Tr. 517-18. Dr. 3 Drenguis noted Plaintiff was using a walker at the time of the examination, and the 4 opinion “is based on how she appears on today’s examination,” but Plaintiff was 5 expected to show improvement in her left knee function with time. Tr. 518. Dr. 6 Drenguis opined Plaintiff could stand and walk at least two hours and sit at least 7 six hours; she needs a walker for postoperative analgesia; she can lift/carry 20 8 pounds occasionally and 10 pounds frequently; she can occasionally climb, 9 balance, stoop, and crouch, and cannot kneel or crawl; she can frequently reach 10 with no limits on handling, fingering, or feeling; and she is limited in working 11 around dust, fumes, and gases. Id. The ALJ gave Dr. Drenguis’ opinion partial 12 weight. Tr. 27. As Dr. Drenguis’ opinion is contradicted by the opinions of Dr. 13 Platter, Tr. 107-09, and Dr. Staley, Tr. 146-48, the ALJ was required to give 14 specific and legitimate reasons, supported by substantial evidence, to reject Dr. 15 Drenguis’ opinion. See Bayliss, 427 F.3d at 1216. 16 The ALJ found Dr. Drenguis’ opinion overall was consistent with the 17 evidence but found the opinion that Plaintiff cannot kneel was based on his 18 observations only one month after Plaintiff’s knee replacement. Tr. 27. An ALJ 19 may discredit physicians’ opinions that are unsupported by the record as a whole. 20 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190 1195 (9th Cir. 2004). 2 ORDER - 18 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.847 Page 19 of 24 1 Earlier in the decision, the ALJ noted Plaintiff’s medical records demonstrated that 2 after her surgery, she had little to no ongoing knee pain or significant functional 3 limitations, she was doing fairly well with adequately controlled pain, and an MRI 4 of the left knee was largely unremarkable. Tr. 25 (citing Tr. 492, 526, 545, 5895 90, 600, 605, 611, 616, 623, 646, 668-69). Plaintiff argues she had continued knee 6 pain and limitations due to her knee impairment. ECF No. 14 at 7-8. However, as 7 the ALJ noted, any error in rejecting Dr. Drenguis’ opinion regarding kneeling 8 would be harmless as Plaintiff’s prior work did not require kneeling. Tr. 27; see 9 Molina, 674 F.3d at 1115. 10 Plaintiff argues the ALJ erred in rejecting Dr. Drenguis’ opinion as Dr. 11 Drenguis opined Plaintiff is capable of performing sedentary work and the ALJ 12 found Plaintiff is capable of light work. ECF No. 14 at 6-7. Dr. Drenguis opined 13 Plaintiff is capable of lifting/carrying 20 pounds occasionally and 10 pounds 14 frequently and standing/walking “at least” two hours, and did not give any further 15 opinion on her ability to stand and walk. Tr. 518. The ALJ found Dr. Drenguis’ 16 opinion consistent with light work, interpreting the opinion to mean Plaintiff could 17 stand/walk at least six hours in the day, although it is unclear if that was Dr. 18 Drenguis’ intention. As the case is being remanded for the reasons discussed 19 supra, the ALJ is instructed to also reconsider Dr. Drenguis’ opinion. The ALJ is 20 further instructed obtain a physical consultative examination prior to the remand 2 ORDER - 19 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.848 Page 20 of 24 1 hearing to help determine Plaintiff’s limitations after she recovered from her 2 surgeries, and to call a medical expert to assist with determining Plaintiff’s severe 3 impairments and what limitations are caused by Plaintiff’s severe impairments. 4 3. State agency consultants 5 On July 27, 2017, Dr. Platter, a State agency medical consultant, rendered 6 two opinions on Plaintiff’s functioning. Tr. 105-11. Dr. Platter opined that prior 7 to February 10, 2016, Plaintiff was capable of lifting 20 pounds occasionally and 8 10 pounds frequently; standing/walking six hours in a day and sitting six hours in a 9 day; frequently stooping; occasionally climbing ramps/stairs, balancing, kneeling, 10 crouching, and crawling; never climbing ladders/ropes/scaffolds; and she should 11 avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and 12 hazards. Tr. 111. Dr. Platter opined that from February 20, 2016 onward, Plaintiff 13 is capable of lifting/carrying less than 10 pounds frequently and 10 pounds 14 occasionally; standing/walking for two hours and sitting for six hours; frequently 15 stooping; occasionally climbing ramps/stairs, balancing, crouching, and crawling; 16 never climbing ladders/ropes/scaffolds; and she should avoid concentrated 17 exposure to extreme cold, heat, wetness, fumes, odors, dusts, gases, poor 18 ventilation, and hazards. Tr. 108-09. Dr. Staley, another State agency consultant, 19 reviewed the evidence at the reconsideration level and gave the same opinion on 20 2 ORDER - 20 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.849 Page 21 of 24 1 Plaintiff’s functioning. Tr. 146-50. The ALJ gave Dr. Platter and Dr. Staley’s 2 opinions limited weight. Tr. 28. 3 On October 13, 2017, Dr. Anderson, a State agency psychological 4 consultant, reviewed Plaintiff’s records and rendered an opinion on her 5 functioning. Tr. 143-44, 150-51. Dr. Anderson found Plaintiff’s anxiety disorder 6 is severe as it causes mild limitations in her ability to understand, remember, or 7 apply information and interact with others, but moderate limitations in 8 concentration, persistence, or maintaining pace and adapting or managing oneself. 9 Tr. 143-44. He further opined Plaintiff has moderate limitations in her ability to 10 maintain attention/concentration for extended periods, respond appropriately to 11 changes in the work setting, and set realistic goals or make plans independently of 12 others. Tr. 150-51. The ALJ gave Dr. Anderson’s opinion limited weight. Tr. 21. 13 As the State agency consultants are nonexamining sources, the ALJ must consider 14 the opinions and whether they are consistent with other independent evidence in 15 the record. See 20 C.F.R. §§ 404.1527(b),(c)(1), 416.927(b),(c)(1); Tonapetyan, 16 242 F.3d at 1149; Lester, 81 F.3d at 830-31. 17 As the case is being remanded to reconsider Plaintiff’s symptom complaints 18 and other medical opinions, the ALJ is instructed to reconsider the medical opinion 19 evidence in its entirety, including the State agency opinions. 20 2 ORDER - 21 Case 1:20-cv-03010-MKD 1 2 ECF No. 19 filed 06/24/20 PageID.850 Page 22 of 24 C. Step-Two Analysis Plaintiff contends the ALJ erred in finding Plaintiff’s anxiety is non-severe. 3 ECF No. 14 at 20-21. At step two of the sequential process, the ALJ must 4 determine whether the claimant suffers from a “severe” impairment, i.e., one that 5 significantly limits her physical or mental ability to do basic work activities. 20 6 C.F.R. §§ 404.1520(c), 416.920(c). To establish a severe impairment, the claimant 7 must first demonstrate the existence of a physical or mental impairment by 8 providing medical evidence consisting of signs, symptoms, and laboratory 9 findings; the claimant’s own statement of symptoms alone will not suffice. 20 10 C.F.R. §§ 404.1521, 416.921. 11 An impairment may be found to be not severe when “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 work….” SSR 85-28 at *3. Similarly, an impairment is not severe if it does not 15 significantly limit a claimant’s physical or mental ability to do basic work 16 activities; which include walking, standing, sitting, lifting, pushing, pulling, 17 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, 18 carrying out and remembering simple instructions; responding appropriately to 19 supervision, coworkers and usual work situations; and dealing with changes in a 20 2 ORDER - 22 Case 1:20-cv-03010-MKD ECF No. 19 filed 06/24/20 PageID.851 Page 23 of 24 1 routine work setting. 20 C.F.R. § 404.1522(a); SSR 85-28.3 2 Step two is “a de minimus screening device [used] to dispose of groundless 3 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 4 our normal standard of review to the requirements of step two, [the Court] must 5 determine whether the ALJ had substantial evidence to find that the medical 6 evidence clearly established that [Plaintiff] did not have a medically severe 7 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 8 (9th Cir. 2005). 9 The ALJ found several of Plaintiff’s impairments non-severe, including her 10 anxiety disorder. Tr. 18-20. Plaintiff contends the ALJ erred in finding her 11 anxiety disorder non-severe. ECF No. 14 at 20-21. As the case is being remanded 12 to reconsider the opinion evidence and Plaintiff’s symptom claims, obtain a 13 consultative examination, and take medical expert testimony, the ALJ is instructed 14 to perform the five-step sequential analysis anew, including reconsidering whether 15 Plaintiff’s anxiety disorder is a severe impairment at step two. 16 17 18 3 19 20 2 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). ORDER - 23 Case 1:20-cv-03010-MKD 1 ECF No. 19 filed 06/24/20 PageID.852 Page 24 of 24 Plaintiff has not argued for an award of immediate benefits, and the Court 2 finds further proceedings are necessary to address conflicting evidence and take 3 medical expert testimony. As such, the case is remanded for proceedings 4 consistent with this Order. 5 6 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 7 ALJ’s decision is not supported by substantial evidence and is not free of harmful 8 legal error. Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 11 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 12 REVERSING and REMANDING the matter to the Commissioner of Social 13 Security for further proceedings consistent with this recommendation pursuant to 14 sentence four of 42 U.S.C. § 405(g). 15 The District Court Executive is directed to file this Order, provide copies to 16 counsel, and CLOSE THE FILE. 17 DATED June 24, 2020. 18 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 19 20 2 ORDER - 24

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