“As a general rule, where the ‘critical portions’ 18 of a treating physician’s discredited opinion were presented for the first time to the Appeals 19 Council, the appropriate remedy is to remand the case to the ALJ to consider the additional 20 evidence.”
How later courts described this case
- “As a general rule, where the ‘critical portions’ 18 of a treating physician’s discredited opinion were presented for the first time to the Appeals 19 Council, the appropriate remedy is to remand the case to the ALJ to consider the additional 20 evidence.”
- discussing this “de minimis 25 standard”
- “Unless the district court concludes that further administrative 10 proceedings would serve no useful purpose, it may not remand with a direction to provide 11 benefits.”
- a 16 reviewing court cannot affirm an ALJ’s decision denying benefits on a ground not invoked by the 17 Commissioner
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 IRINA FRITS, No. 2:19-cv-2371 DB
12 Plaintiff,
13 v. ORDER
14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security1,
15
16 Defendant.
17
18 This social security action was submitted to the court without oral argument for ruling on
19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2
20 Plaintiff’s motion argues that the Administrative Law Judge erred at step two of the sequential
21 evaluation, failed to account for all of plaintiff’s impairments, and erred with respect to plaintiff’s
22 English language competency finding.
23 ////
24
25 1 After the filing of this action Kilolo Kijakazi was appointed Acting Commissioner of Social
Security and has, therefore, been substituted as the defendant. See 42 U.S.C. § 405(g) (referring
26 to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the
Commissioner shall, in his official capacity, be the proper defendant”).
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2 Both parties have previously consented to Magistrate Judge jurisdiction over this action
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1 For the reasons explained below, plaintiff’s motion is granted, the decision of the
2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for
3 further proceedings consistent with this order.
4 PROCEDURAL BACKGROUND
5 On June 8, 2016, plaintiff filed an application for Supplemental Security Income (“SSI”)
6 under Title XVI of the Social Security Act (“the Act”) alleging disability beginning on October 1,
7 2014. (Transcript (“Tr.”) at 10, 227-33.) Plaintiff’s alleged impairments included fibromyalgia,
8 anemia, arthritis, lung problems, depression, and back problems. (Id. at 243.) Plaintiff’s
9 application was denied initially, (id. at 152-56), and upon reconsideration. (Id. at 161-66.)
10 Thereafter, plaintiff requested a hearing which was held before an Administrative Law
11 Judge (“ALJ”) on June 22, 2018. (Id. at 35-62.) Plaintiff was represented by a non-attorney
12 representative and testified at the administrative hearing with the assistance of an interpreter. (Id.
13 at 10, 35-37.) In a decision issued on October 10, 2018, the ALJ found that plaintiff was not
14 disabled. (Id. at 20.) The ALJ entered the following findings:
15 1. The claimant has not engaged in substantial gainful activity since
June 8, 2016, the application date (20 CFR 416.971 et seq.).
16
2. The claimant has the following severe impairments: lumbar and
17 cervical degenerative disc disease; joint pain; chronic bronchiectasis;
and headaches (20 CFR 416.920(c)).
18
3. The claimant does not have an impairment or combination of
19 impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
20 CFR 416.920(d), 416.925 and 416.926).
21 4. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
22 medium work as defined in 20 CFR 416.967(c) except she can
occasionally climb ladders, ropes and scaffolds; frequently climb
23 ramps/stairs; should avoid concentrated exposure to extreme cold,
heat, humidity, fumes, odors, and other similar pulmonary irritants.
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5. The claimant has no past relevant work (20 CFR 416.965).
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6. The claimant was born [in] 1964 and was 51 years old, which is
26 defined as an individual closely approaching advances age, on the
date the application was filed (20 CFR 416.963).
27
28 ////
1 7. The claimant is able to verbally communicate in English, and is
considered in the same way as an individual who is illiterate in
2 English (20 CFR 416.964).
3 8. Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 CFR 416.968).
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9. Considering the claimant’s age, education, work experience, and
5 residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
6 CFR 416.969 and 416.969(a)).
7 10. The claimant has not been under a disability, as defined in the
Social Security Act, since June 8, 2016, the date the application was
8 filed (20 CFR 416.920(g)).
9 (Id. at 13-20.)
10 On September 20, 2019, the Appeals Council denied plaintiff’s request for review of the
11 ALJ’s October 10, 2018 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42
12 U.S.C. § 405(g) by filing the complaint in this action on November 23, 2019. (ECF No. 1.)
13 LEGAL STANDARD
14 “The district court reviews the Commissioner’s final decision for substantial evidence,
15 and the Commissioner’s decision will be disturbed only if it is not supported by substantial
16 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).
17 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
18 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.
19 Chater, 108 F.3d 978, 980 (9th Cir. 1997).
20 “[A] reviewing court must consider the entire record as a whole and may not affirm
21 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,
22 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
23 1989)). If, however, “the record considered as a whole can reasonably support either affirming or
24 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072,
25 1075 (9th Cir. 2002).
26 A five-step evaluation process is used to determine whether a claimant is disabled. 20
27 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step
28 process has been summarized as follows:
1 Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is found not disabled. If not, proceed to step two.
2
Step two: Does the claimant have a “severe” impairment? If so,
3 proceed to step three. If not, then a finding of not disabled is
appropriate.
4
Step three: Does the claimant’s impairment or combination of
5 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404,
Subpt. P, App. 1? If so, the claimant is automatically determined
6 disabled. If not, proceed to step four.
7 Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.
8
Step five: Does the claimant have the residual functional capacity to
9 perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.
10
11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
12 The claimant bears the burden of proof in the first four steps of the sequential evaluation
13 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden
14 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,
15 1098 (9th Cir. 1999).
16 APPLICATION
17 Plaintiff’s pending motion asserts the following three principal claims: (1) the ALJ erred
18 step two of the sequential evaluation; (2) the ALJ failed to account for all of plaintiff’s
19 impairments; and (3) the ALJ erred with respect to plaintiff’s English language competency.3
20 (Pl.’s MSJ (ECF No. 16) at 7-15.4)
21 I. Step Two Error
22 At step two of the sequential evaluation, the ALJ must determine if the claimant has a
23 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273,
24 1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations
25 provide that “[a]n impairment or combination of impairments is not severe if it does not
26
3 The court has reordered plaintiff’s claims for purposes of clarity and efficiency.
27
4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF
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1 significantly limit [the claimant’s] physical or mental ability to do basic work activities.” 20
2 C.F.R. §§ 404.1521(a) & 416.921(a). Basic work activities are “the abilities and aptitudes
3 necessary to do most jobs,” and those abilities and aptitudes include: (1) physical functions such
4 as walking, standing, sitting, lifting, and carrying; (2) capacities for seeing, hearing, and speaking;
5 (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5)
6 responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing
7 with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).
8 The Supreme Court has recognized that the Commissioner’s “severity regulation increases
9 the efficiency and reliability of the evaluation process by identifying at an early stage those
10 claimants whose medical impairments are so slight that it is unlikely they would be found to be
11 disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S.
12 at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158
13 (O’Connor, J., concurring). “An impairment or combination of impairments can be found not
14 severe only if the evidence establishes a slight abnormality that has no more than a minimal effect
15 on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and
16 citation omitted).
17 “[A]n ALJ may find that a claimant lacks a medically severe impairment or combination
18 of impairments only when his conclusion is ‘clearly established by medical evidence.’” Webb v.
19 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 85-28); see
20 also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to satisfy step two
21 burden where “none of the medical opinions included a finding of impairment, a diagnosis, or
22 objective test results”). “Step two, then, is ‘a de minimis screening device [used] to dispose of
23 groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); see also
24 Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing this “de minimis
25 standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13 (N.D. Cal.
26 Feb.11, 2008) (describing claimant’s burden at step two as “low”).
27 Here, plaintiff argues that the ALJ erred at step two of the sequential evaluation by finding
28 that plaintiff’s mental impairments were not severe impairments. (Pl.’s MSJ (ECF No. 16) at 11-
1 15.) If the ALJ determines that a claimant has a medically determinable mental impairment, the
2 ALJ then rates the degree of the claimant’s functional limitations in four areas, known as the
3 “Paragraph B Criteria”: (1) activities of daily living; (2) social functioning; (3) concentration,
4 persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(b)-(c); see also
5 Pt. 404, Subpt. P, App. 1, 12.00 Mental Disorders. In the first three areas, the ALJ rates the
6 limitations as either none, mild, moderate, marked, or extreme. The fourth functional area,
7 episodes of decompensation, is rated on a four-point scale of none, one or two, three, and four or
8 more. 20 C.F.R. 404.1520a(c)(3) and (4).
9 Where the claimant’s degree of limitation is rated as “none” or “mild,” the ALJ will
10 generally find the impairment “‘not severe’, unless the evidence otherwise indicates that there is
11 more than a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 C.F.R.
12 § 404.1520a(d)(1). If a severe impairment exists, all medically determinable impairments must
13 be considered in the remaining steps of the sequential analysis. 20 C.F.R. § 404.1523. The ALJ
14 “must consider the combined effect of all of the claimant’s impairments on her ability to function,
15 without regard to whether each alone [i]s sufficiently severe.” Smolen, 80 F.3d at 1290; 20
16 C.F.R. § 404.1523.
17 Here, the ALJ acknowledged that plaintiff had “been diagnosed with depressive disorder
18 and obsessive compulsive disorder.” (Tr. at 13.) The ALJ found that these medically
19 determinable mental impairments caused “no more than mild limitations” and were, therefore,
20 “nonsevere.” (Id. at 15.) However, Markie Maldonado, a treating physician’s assistant, opined
21 that plaintiff had “moderate limitations in understanding, rember[ing], and applying information
22 and interacting with others and marked limitations in concentration, persistence, and pace and
23 adapting or managing oneself.” (Id. at 14.) And Tatiana Gelbova, Ph. D., LMFT—a treating
24 physician—opined that plaintiff “would have marked limitations in maintain concentration,
25 persistence, and pace and adapting or managing oneself; moderate limitations in interacting with
26 others; and mild limitations in understanding[,] remembering[,] and applying information.” (Id.)
27 The ALJ elected to afford these opinions “little weight.” (Id.) “This weighing of the
28 evidence . . . would be more appropriate at step three of the sequential process. Indeed, all that is
1 required at step two is a minimal showing of severity,” which would be satisfied by the opinions
2 of two treating sources. Kang Jin v. Berryhill, Case No. 4:18-cv-7091 KAW, 2020 WL 999795,
3 at *2 (N.D. Cal. Mar. 2, 2020).
4 Moreover, the ALJ gave little weight to Dr. Glebova’s opinion because it “was rendered
5 only a few weeks after the claimant initiated treatment, is not supported by specific objective
6 findings, and is inconsistent with the claimant’s improvement with treatment.” (Tr. at 14.)
7 However, on November 13, 2018—after the ALJ’s October 10, 2018 opinion—Dr. Glebova
8 completed a Medical Assessment of Ability to Do Work-Related Activities (Mental) Form, and a
9 letter in support of Dr. Glebova’s opinion. (Id. at 32-35.)
10 Those documents reflect that Dr. Glebova’s had by then treated plaintiff with 22 sessions
11 of psychotherapy. (Id. at 32.) Plaintiff’s “diagnoses” included Obsessive-Compulsive Disorder,
12 mixed obsessional thoughts and acts, and Major Depressive Disorder. (Id.) Dr. Glebova’s
13 opinion was based, in part, on plaintiff’s scores on the Beck Depression Inventory and the Yale-
14 Brown Obsessive Compulsive Scale. (Id.) Those scores fluctuated over the course of treatment,
15 and Dr. Glebova noted that “full recovery is reported for approximately 30% of patients
16 diagnosed with Major Depressive Disorder[.]” (Id.) Dr. Glebova also opined that plaintiff was
17 markedly limited in several areas of functioning. (Id. at 31-33.)
18 Although Dr. Glebova’s November 12, 2018 opinion was issued after the ALJ’s October
19 10, 2018 opinion, it was submitted to and considered by the Appeal Council in denying review of
20 the ALJ’s opinion. (Id. at 2.)
21 [W]hen a claimant submits evidence for the first time to the
Appeals Council, which considers that evidence in denying review
22 of the ALJ’s decision, the new evidence is part of the administrative
record, which the district court must consider in determining
23 whether the Commissioner’s decision is supported by substantial
evidence.
24
25 Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). In this
26 regard, the record before the court now contains additional evidence supporting the severity of
27 plaintiff’s mental impairments, Dr. Glebova’s treating opinion, and the opinion of Markie
28 Maldonado.
1 Since the new evidence directly undermines the basis of the ALJ’s decision, the court
2 concludes that the Commissioner’s decision was “not supported by substantial evidence.” Id. at
3 1164; see also Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (“When, as here, the
4 Appeals Council considers new evidence in deciding whether to review a decision of the ALJ,
5 that evidence becomes part of the administrative record, which the district court and this court
6 must consider when reviewing the Commissioner of Social Security’s final decision for
7 substantial evidence.”).
8 Defendant attempts to provide reasons why the ALJ would, nonetheless, also reject this
9 new evidence. (Def.’s MSJ (ECF No. 17) at 15-16.) The court, however, may not speculate as to
10 the ALJ’s findings or the basis of the ALJ’s unexplained conclusions. See Burrell, 775 F.3d at
11 1138 (“We are constrained to review the reasons the ALJ asserts.”); Bray v. Commissioner of
12 Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of
13 administrative law require us to review the ALJ’s decision based on the reasoning and factual
14 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the
15 adjudicator may have been thinking.”); Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006) (a
16 reviewing court cannot affirm an ALJ’s decision denying benefits on a ground not invoked by the
17 Commissioner).
18 Accordingly, for the reasons stated above, the court finds that the Commissioner’s
19 decision is not supported by substantial evidence, and that plaintiff is entitled to summary
20 judgment on this claim.
21 CONCLUSION
22 With error established, the court has the discretion to remand or reverse and award
23 benefits.5 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded
24 under the “credit-as-true” rule for an award of benefits where:
25
5 “In light of the remand required by the ALJ’s error at step two of the sequential evaluation, the
26 court need not address plaintiff’s remaining claims.” Meinecke v. Colvin, No. 2:14-cv-2210 AC
(TEMP), 2016 WL 995515, at *4 (E.D. Cal. Mar. 14, 2016); see also Sanchez v. Apfel, 85
27 F.Supp.2d 986, 993 n. 10 (C.D. Cal. 2000) (“Having concluded that a remand is appropriate
because the ALJ erred in ending the sequential evaluation at Step Two, this Court need not
28
1 (1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
2 provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
3 discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.
4
5 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the
6 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when
7 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within
8 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d
9 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative
10 proceedings would serve no useful purpose, it may not remand with a direction to provide
11 benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.
12 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the
13 proper approach is to remand the case to the agency.”).
14 Here, the ALJ erred at step two of the sequential evaluation, in part, by failing to consider
15 evidence that was not before the ALJ. As such, the court cannot say that “further administrative
16 proceedings would serve no useful purpose.” Dominguez, 808 F.3d at 407; see also Gardner v.
17 Berryhill, 856 F.3d 652, 657-58 (9th Cir. 2017) (“As a general rule, where the ‘critical portions’
18 of a treating physician’s discredited opinion were presented for the first time to the Appeals
19 Council, the appropriate remedy is to remand the case to the ALJ to consider the additional
20 evidence.”).
21 Accordingly, IT IS HEREBY ORDERED that:
22 1. Plaintiff’s motion for summary judgment (ECF No. 16) is granted;
23 2. Defendant’s cross-motion for summary judgment (ECF No. 17) is denied;
24 3. The Commissioner’s decision is reversed;
25 4. This matter is remanded for further proceedings consistent with this order; and
26 ////
27 ////
28 ////
1 5. The Clerk of the Court shall enter judgment for plaintiff, and close this case.
2
3 | Dated: August 30, 2021
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6 | DLB.o ONETED STATS ag JUDGE
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