Michaud v. Berryhill

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LISA LURINE MICHAUD, Case No.: 18-cv-02625-JLS-MDD 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 ANDREW SAUL, Commissioner of RE: MOTION FOR SUMMARY Social Security, 15 JUDGMENT Defendant. 16 [ECF Nos. 15, 16] 17 18 This Report and Recommendation is submitted to United States 19 District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and 20 Local Civil Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 Plaintiff Lisa Lurine Michaud (“Plaintiff”) filed this action pursuant to 23 42 U.S.C. § 405(g) for judicial review of the final administrative decision of 24 the Commissioner of the Social Security Administration (“Commissioner”). 25 / / / 26 / / / 1 (ECF No. 15-1 at 2).1 The final administrative decision of the Commissioner 2 denied Plaintiff’s application for Disability Insurance Benefits under Title II 3 of the Social Security Act (“Title II”) and for Supplemental Security Income 4 under Title XVI of the Social Security Act (“Title XVI”). (AR 37).2 5 For the reasons set forth herein, the Court RECOMMENDS Plaintiff’s 6 Motion for Summary Judgment be GRANTED IN PART, Defendant’s Cross 7 Motion for Summary Judgment be DENIED, and that the case be 8 REMANDED for further proceedings. 9 I. BACKGROUND 10 Plaintiff was born on July 17, 1964. (AR 384). At the time the instant 11 application was filed on May 27, 2014, Plaintiff was 49 years-old which 12 categorized her as a younger person. 20 C.F.R. §§ 404.1563, 416.963. 13 A. Procedural History 14 On May 27, 2014, Plaintiff protectively filed an application for a period 15 of Disability Insurance Benefits under Title II and for Supplemental Security 16 Income under Title XVI. (AR 37). The application alleged a disability 17 beginning November 28, 2011. (Id.). After her application was denied 18 initially and upon reconsideration, Plaintiff requested an administrative 19 hearing before an administrative law judge (“ALJ”). (Id.). An administrative 20 hearing was held on February 9, 2017. (Id.). Plaintiff appeared and was 21 represented by attorney Pauline McMahon. (AR 209). Testimony was taken 22 from Plaintiff and impartial vocational expert Nelly Katsell. (AR 207-67). 23 24 25 1 All pincite page references refer to the automatically generated ECF page 26 number, not the page number in the original document. 2 “AR” refers to the Certified Administrative Record filed on April 15, 2019. 1 On June 28, 2017, the ALJ issued a decision finding Plaintiff was not 2 disabled from November 28, 2011 through the date of the decision and 3 therefore denied Plaintiff’s claim for benefits. (AR 45).3 4 On August 25, 2017, Plaintiff sought review with the Appeals Council. 5 (AR 414). On October 16, 2018, the Appeals Council denied Plaintiff’s 6 request for review and declared the ALJ’s decision to be the Commissioner’s 7 final decision in Plaintiff’s case. (AR 1-4). This timely civil action followed. 8 II. DISCUSSION 9 A. Legal Standard 10 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 11 unsuccessful applicants to seek judicial review of a final agency decision of 12 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 13 review is limited in that a denial of benefits will not be disturbed if it is 14 supported by substantial evidence and contains no legal error. Id.; see also 15 Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004). 16 Substantial evidence means “more than a mere scintilla but less than a 17 18 19 3 The Court notes that on May 6, 2009, Plaintiff filed a claim for Disability 20 Insurance Benefits and Supplemental Security Income under Titles II and XVI, alleging disability beginning in May 1, 2009. (AR 271-82). There, the 21 ALJ concluded that Plaintiff had the following medically determinable 22 impairments that in combination were considered “severe” under the Social Security Act: “[m]ild degenerative joint disease at L5-S1 without central or 23 peripheral neuroforaminal stenosis; peripheral neuropathy in both legs per 24 EMG in November 2010; and eczema, left lower extremity (20 C.F.R. 404.1520(c) and 416.920(c)).” (AR 273). The ALJ found that Plaintiff did not 25 have an impairment or combination of impairments that met or medically 26 equaled the severity of any impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 274). Accordingly, the ALJ found Plaintiff was not 1 preponderance. . . .” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) 2 (internal quotation marks and citation omitted). “[I]t is such relevant 3 evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 5 1995)). The court must consider the record as a whole, weighing both the 6 evidence that supports and detracts from the Commissioner’s conclusions. 7 Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 8 1988). If the evidence supports more than one rational interpretation, the 9 court must uphold the ALJ’s decision. Batson, 359 F.3d at 1193. When the 10 evidence is inconclusive, “‘questions of credibility and resolution of conflicts in 11 the testimony are functions solely of the Secretary.’” Sample v. Schweiker, 12 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 13 858 n.7 (9th Cir. 1971)). 14 Even if a reviewing court finds that substantial evidence supports the 15 ALJ’s conclusion, the court must set aside the decision if the ALJ failed to 16 apply the proper legal standards in weighing the evidence and reaching his or 17 her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to 18 enter a judgment affirming, modifying, or reversing the Commissioner’s 19 decision. 42 U.S.C. § 405(g). The reviewing court may also remand the 20 matter to the Social Security Administration for further proceedings. Id. 21 B. Summary of the ALJ’s Findings 22 In rendering his decision, the ALJ followed the Commissioner’s five step 23 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the 24 ALJ found that Plaintiff had not engaged in substantial gainful employment 25 since November 28, 2011. (AR 39). 26 At step two, the ALJ found that Plaintiff had the following severe 1 to moderate degenerative disc disease at L2-3, without neural impingement; 2 peripheral neuropathy in the bilateral lower extremities; and eczema in the 3 left lower extremity (20 C.F.R. 404.1520(c) and 416.920(c)). (Id.). 4 At step three, the ALJ found that Plaintiff did not have an impairment 5 or combination of impairments that met or medically equaled one of the 6 impairments listed in the Commissioner’s Listing of Impairments. (AR 40) 7 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 8 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)). 9 Next, after considering the entire record, the ALJ determined that 10 Plaintiff had the “residual functional capacity [(RFC)] to perform light work 11 as defined in 20 C.F.R. 404.1567(b) and 416.967(b),” with the following 12 limitations: 13 lift and carry 10 pounds frequently and 20 pounds occasionally; sit, stand and walk for 6 hours out of an 8-hour workday; no push 14 or pull in the operation of machinery with either lower extremity; 15 never climb ladders, ropes or scaffolds; occasionally climb ramps and stairs; occasionally stoop, crouch, kneel, and crawl; must 16 avoid concentrated exposure to dangerous moving machinery, 17 electrical shock, radiation and unprotected heights; and must avoid concentrated exposure to temperature extremes. 18 19 (AR 41). The ALJ stated he considered the opinion evidence in 20 accordance with the requirements of 20 C.F.R. 404.1527 and 416.927. 21 (Id.). 22 The ALJ then proceeded to step four of the sequential evaluation 23 process. He found Plaintiff was able to perform her past relevant work. (AR 24 43). For the purposes of his step four evaluation, the ALJ relied upon the 25 testimony of the vocational expert (“VE”), and the ability of someone with the 26 claimant’s RFC, both as actually done and as generally done in the national 1 the following jobs: home attendant, cashier, assembler, receptionist, 2 secretary, stock control clerk, and nurse assistant. (AR 44). 3 C. Whether the ALJ Erred at Step Two of the Evaluation 4 Process 5 The sole issue in dispute is whether the ALJ erred at step two of the 6 evaluation process under 20 C.F.R. 404.1520(a) (“Step Two”) by failing to 7 categorize Plaintiff’s photophobia as a severe or non-severe impairment that 8 affected her RFC. (ECF No. 15-1 at 4). At Step Two, the ALJ must 9 determine whether the claimant has a “severe medically determinable 10 physical or mental impairment” that has lasted, or is expected to last, more 11 than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). If 12 the claimant does not have a severe, medically determinable physical or 13 mental impairment that meets the duration requirement, or a combination of 14 impairments that is severe and meets the duration requirement, the claimant 15 is not disabled. Id. The claimant has the burden of establishing a severe 16 impairment. Id. 17 A medically determinable impairment is considered “severe” if it 18 “significantly limits [a claimant’s] physical or mental ability to do basic work 19 activities . . . .” 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(iii), (c). Basic 20 work activities are those “abilities and aptitudes necessary to do most jobs,” 21 including, as relevant here, “capacities for seeing.” 20 C.F.R. § 404.1522(b). 22 While the ALJ must take into account a claimant’s pain and other symptoms 23 at Step Two, the severity determination is made solely on the basis of the 24 medical evidence in the record. SSR 85-28 (“[A]t the second step of 25 sequential evaluation it must be determined whether medical evidence 26 establishes an impairment or combination of impairments ‘of such severity’ 1 The Step Two inquiry is a “de minimis screening device used to dispose 2 of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 3 “It is not meant to identify the impairments that should be taken into 4 account when determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048- 5 49 (9th Cir. 2017). When determining the claimant’s RFC, the ALJ must 6 consider “limitations and restrictions imposed by all of an individual’s 7 impairments, even those that are not ‘severe.’” Id. at 1049 (citations and 8 internal quotation marks omitted). “The RFC therefore should be exactly the 9 same regardless of whether certain impairments are considered ‘severe’ or 10 not.” Id. Therefore, where the ALJ fails to list a medically determinable 11 impairment at Step Two, but nonetheless considers the limitations posed by 12 the impairment in the RFC, any error at step two is harmless. Lewis v. 13 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 14 Here, the ALJ concluded that Plaintiff has photophobia, but that “the 15 record does not document any restrictions” or “severe visual impairment[s].” 16 (AR 40). As a result, the ALJ did not consider the effects of photophobia at 17 subsequent steps in the sequential evaluation. (See AR 41-45). In his 18 photophobia analysis, the ALJ cites only four exhibits. (AR 40 (citing AR 596, 19 665, 676, 756-89)). 20 First, the ALJ cites to an evaluation by Russell Edwards, M.D. (“Dr. 21 Edwards”) from April 1, 2014. (AR 40). In November 2013, Dr. Chen 22 referred Plaintiff for evaluation due to her complaints of “extreme sensitivity 23 to light” and reports of “get[ting] unsteady” if she looks into the light. (AR 24 595). Dr. Edwards prescribed Plaintiff eye glasses with “FL 41 tint” for 25 “extreme hypersensitivity to light.” (AR 596). 26 Second, the ALJ cites Dr. Chen’s December 11, 2014 progress notes. 1 sensitivity to light. Has taped dark lenses on the inside of a pair of 2 sunglasses.” (AR 665). Dr. Chen further noted that Plaintiff was “wearing . . 3 . sunglasses in the exam room.” (Id.). 4 Third, the ALJ cites to Dr. Edwards’ April 1, 2014 evaluation. (AR 40). 5 He noted that Plaintiff had been referred for evaluation “of extreme[] 6 photophobia.” (AR 676). Plaintiff reported her light sensitivity began in 7 2006, but became “extreme over the past several years [and that she] wears 2 8 pairs of sunglasses,” but thinks she needs a third pair on top. (Id.). She also 9 indicated “balance disturbances.” (AR 677). Dr. Edwards diagnosed Plaintiff 10 with “Blepharitis, unspecified.” (AR 679). He also indicated Plaintiff has 11 “[a]bnormal sensitivity” to light, listing several factors “independent of photo 12 sensitivity” that may also contribute to her condition. (AR 680). He 13 recommended Plaintiff get a “brain MRI” and try “FL-41 tint glasses.” (Id.). 14 Fourth, the ALJ cites Dr. Chen’s November 2015 to November 2016 15 progress notes in which he noted Plaintiff was wearing dark glasses “as 16 always.” (AR 40, 759, 773, 782). 17 However, the ALJ did not consider several medical records relating to 18 photophobia. For example, the medical records indicate Dr. Chen treated 19 Plaintiff from March 26, 2012 through June 25, 2014. (AR 603-36). On 20 several occasions over that time-frame, Dr. Chen reported Plaintiff’s 21 behaviors could be symptoms of light sensitivity. (AR 603, 606, 608-09, 615, 22 618). Specifically, on July 3, 2013, Dr. Chen treated Plaintiff for bilateral 23 photophobia and referred her to an ophthalmologist. (AR 621). Plaintiff 24 reported that indoor light and sunlight causes her eye pain. (Id.). Dr. Chen 25 noted that Plaintiff was wearing sunglasses and “then covered her eyes with 26 a dark cloth as well.” (Id.). On December 18, 2013, Dr. Chen examined 1 photophobia. (AR 612). Dr. Chen indicated Plaintiff was wearing two pairs 2 of sunglasses and sitting in a dark room. (Id.). 3 Additionally, on January 14, 2014, treating physician Nickolet 4 Boermans, O.D., examined Plaintiff for light sensitivity. (AR 589). Dr. 5 Boermans’ records indicate he was unable to view Plaintiff’s retina due to “pt 6 cooperation.” (AR 590). Nonetheless, Dr. Boermans diagnosed Plaintiff with 7 “Photophobia.” (AR 591). 8 Further, the ALJ did not consider two Disability Determination 9 Explanations. On November 19, 2014, non-examining physician D. Subin, 10 M.D., noted that Plaintiff complained of “hyper-sensitivity to light.” (AR 11 291). Dr. Subin referenced treatments regarding light sensitivity, including 12 Plaintiff’s Eye Care of San Diego examinations on January 14, 2014 and 13 February 18, 2014, but concluded Plaintiff does not have any “visual 14 limitations” nor any “environmental limitations.” (AR 296, 301). At the same 15 time, Dr. Subin conceded that a consultative exam was required because 16 “additional evidence [was] required to establish current severity of the 17 individual’s impairment(s).” (AR 295). On February 2, 2015, non-examining 18 physician S. Lee, M.D., noted that Plaintiff’s “condition to sensitivity to light 19 has made it difficult to be in public places, she must stay indoors and with 20 doors, windows and lights off all the time.” (Id.). Dr. Lee explained that 21 “[Plaintiff] has been diagnosed with extreme hypersensitive [sic] to light, it 22 affects all aspects of her daily living.” (Id.). Dr. Lee recognized Plaintiff 23 reported “worsening of hypersensitivity.” (AR 324). Dr. Lee notes that the 24 only medical evidence of record from 12/14 shows Plaintiff “wearing 25 sunglasses in no acute distress.” (Id.). While Dr. Lee indicated a consultative 26 exam was required, the doctor concluded that Plaintiff does not have any 1 The ALJ also did not consider examining physician Thomas J. Sabourin 2 M.D.’s (“Dr. Sabourin”) November 13, 2014 orthopedic consultation or 3 treating physician John Bokosky M.D.’s (“Dr. Bokosky”) February 18, 2014 4 examination. (AR 587-88, 652). While Dr. Sabourin focused on Plaintiff’s 5 complaints of pain in the neck, hands, back, hips, feet, and knees, he noted 6 that she has “eye hypersensitivity to light.” (AR 652-53). Dr. Bokosky 7 examined Plaintiff because she sought a different light sensitivity 8 prescription and wanted a diagnosis “for extreme light sensitivity.” (AR 587). 9 The Court further notes the ALJ addressed Plaintiff’s claim of 10 photophobia in depth at the administrative hearing. For example, the ALJ 11 “dimmed the lights” as Plaintiff entered the hearing to accommodate her 12 sensitivity to light. (AR 214). The ALJ noted Plaintiff was wearing “very, 13 very dark sunglasses” with “one lens taped behind the other.” (Id.). Plaintiff 14 testified she wears dark glasses all the time, does not turn the lights on in 15 her home, and cannot read white pages. (AR 243-44). As a result, she states 16 she cannot work as a secretary or receptionist. (AR 250-51). Finally, the ALJ 17 asked the VE whether a person who could not work if any acute vision is 18 required or with only occasional acute vision is required could perform 19 sedentary work. (AR 263-65). The VE stated there would be no work. (AR 20 264-65). 21 Absent consideration of all the evidence of Plaintiff’s photophobia, the 22 Court cannot determine whether the ALJ’s finding of no restrictions or severe 23 visual impairments is supported by substantial evidence. Accordingly, the 24 ALJ erred at Step Two. 25 D. Remand for Further Administrative Proceedings 26 The law is well established that the decision whether to remand for 1 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); 2 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 3 654 F.2d 631, 635 (9th Cir. 1981). Remand pursuant to sentence four of § 4 405(g) for further proceedings is warranted where additional administrative 5 proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 6 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand 7 pursuant to sentence six for the payment of benefits is appropriate where no 8 useful purpose would be served by further administrative proceedings, 9 Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has 10 been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 11 1986); or where remand would unnecessarily delay the receipt of benefits to 12 which the disabled plaintiff is entitled, Bilby v. Schweiker, 762 F.2d 716, 719 13 (9th Cir. 1985). 14 As noted above, the ALJ erred at Step Two by failing to consider all the 15 evidence of Plaintiff’s photophobia. Under these circumstances, the Court is 16 unable to affirm the ALJ’s photophobia determination at Step Two. 17 Moreover, because the ALJ did not consider effects of photophobia at 18 subsequent steps of the sequential evaluation, the Court is also unable to 19 affirm the ALJ’s RFC determination. As this is an issue that must be 20 resolved through further proceedings, the case must be remanded to 21 determine whether Plaintiff’s photophobia is a medically determinable 22 impairment, and to incorporate any credible limitations arising out of 23 Plaintiff’s photophobia, regardless of severity, into the RFC. 24 III. CONCLUSION AND RECOMMENDATION 25 For the foregoing reasons, this Court RECOMMENDS that Plaintiff’s 26 Motion for Summary Judgment be GRANTED IN PART, Defendant’s Cross 1 || REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 9 || proceedings in accordance with this Report and Recommendation. This 3 ||Report and Recommendation of the undersigned Magistrate Judge is 4 ||submitted to the United States District Judge assigned to this case, pursuant 5 ||to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the 6 || United States District Court for the Southern District of California. 7 IT IS HEREBY ORDERED that any written objection to this report g || must be filed with the Court and served on all parties no later than 9 || November 18, 2019. The document should be captioned “Objections to 10 || Report and Recommendations.” 11 IT IS FURTHER ORDERED that any reply to the objections shall be 12 ||filed with the Court and served on all parties no later than November 25, 13 ||2019. The parties are advised that failure to file objections within the 14 specified time may waive the right to raise those objections on appeal of the 15 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 16 IT IS SO ORDERED. Dated: November 1, 2019 +l s | [ Hon. Mitchell D. Dembin 19 United States Magistrate Judge 20 21 22 23 24 25 26 27