Betts-Cossens v. Berryhill

          ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS

          Alan C. Kay Sr. United States District Judge.

         For the reasons to be discussed in its written order, the Court REVERSES the decision of the Commissioner and REMANDS for further administrative proceedings consistent with this Order.

         BACKGROUND

         On June 3, 2012, Plaintiff Christopher Marcus Betts (“Plaintiff”) filed an application for Social Security Disability Insurance (“SSDI”) benefits. AR 18. Plaintiff also filed for supplemental security income (“SSI”) on June 14, 2012. Id. In both applications, Plaintiff alleged disability beginning October 25, 2010. Id. The application was initially denied on November 23, 2012, and upon reconsideration on September 12, 2013. AR 121-25, 128-36. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on August 11, 2014. AR 36-64. On October 31, 2014, the ALJ issued her written decision finding Plaintiff not disabled. AR 30. Plaintiff filed a request with the Appeals Council to review the ALJ's decision on December 16, 2014. AR 12-14. Plaintiff passed away on January 11, 2015. Complaint ¶ 4; AR 614, 638. The Appeals Council denied his request and adopted the ALJ's decision as the final decision of the Commission on June 20, 2016. AR 2-7.

         Plaintiff's former wife, on behalf of Plaintiff, filed a complaint on June 26, 2016 seeking a review of the denial of Plaintiff's applications for SSDI and SSI benefits. ECF No. 1. On March 15, 2017, Plaintiff filed his opening brief. ECF No. 14 (“Opening Br.”). Defendant, the Acting Commissioner of Social Security^[1] (“Commissioner”), filed her answering brief on May 4, 2017. ECF No. 16 (“Ans. Br.”). Plaintiff filed his reply brief on May 15, 2017. ECF No. 17 (“Reply Br.”).

         The Court held a hearing on June 13, 2017 regarding Plaintiff's requested review of the Commissioner's decision.

         STANDARD

         A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of Social Security.^[2]

         A final decision by the Commissioner denying Social Security disability benefits will not be disturbed by the reviewing district court if it is free of legal error and supported by substantial evidence. See 42 U.S.C. § 405(g); Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016) (reviewing a district court's decision de novo). Even if a decision is supported by substantial evidence, it “will still be set aside if the ALJ did not apply proper legal standards.” See Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).

         In determining the existence of substantial evidence, the administrative record must be considered as a whole, weighing the evidence that both supports and detracts from the Commissioner's factual conclusions. See id. “Substantial evidence means more than a scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). “If the evidence can reasonably support either affirming or reversing, the reviewing court may not substitute its judgment for that of the Commissioner.” Id. (internal quotation marks omitted). Rather, courts “leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

         DISCUSSION

         “To establish a claimant's eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); see 42 U.S.C. § 423(d)(2)(A). A claimant must satisfy both requirements in order to qualify as “disabled” under the Social Security Act. Tackett, 180 F.3d at 1098.

         I. The Social Security Administration's Five-Step Process for Determining Disability

         The Social Security regulations set forth a five-step sequential process for determining whether a claimant is disabled. Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005); see 20 C.F.R. § 404.1520.^[3] “If a claimant is found to be ‘disabled' or ‘not disabled' at any step in the sequence, there is no need to consider subsequent steps.” Ukolov, 420 F.3d at 1003 (citations omitted in original). The claimant bears the burden of proof as to steps one through four, whereas the burden shifts to the Social Security Administration (“SSA”) for step five. Tackett, 180 F.3d at 1098.

         At step one the ALJ will consider a claimant's work activity, if any. 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds the claimant is engaged in substantial gainful activity he will determine that the claimant is not disabled, regardless of the claimant's medical condition, age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is work that is defined as both substantial - i.e. work activity involving significant physical or mental activities - and gainful - i.e. work activity done for pay or profit. 20 C.F.R. § 404.1572. If the ALJ finds that the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. Tackett, 180 F.3d at 1098.

         Step two requires the ALJ to consider the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a) (4)(ii). Only if the claimant has an impairment or combination of impairments that “significantly limits [his] physical or mental ability to do basic work activities” will the analysis proceed to step three. 20 C.F.R. § 404.1520(c). If not, the ALJ will find the claimant is not disabled and the analysis stops. 20 C.F.R. § 404.1520(a)(4)(ii).

         The severity of the claimant's impairments is also considered at step three. 20 C.F.R. § 404.1520(a)(4)(iii). Here, the ALJ will determine whether the claimant's impairments meet or medically equal the criteria of an impairment specifically described in the regulations. Id.; see also 20 C.F.R. Part 404, Subpart P, App. 1. If the impairments do meet or equal these criteria, the claimant is deemed disabled and the analysis ends. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the analysis proceeds to step four. 20 C.F.R. § 404.1520(e).

         Step four first requires the ALJ to determine the claimant's residual functional capacity (“RFC”). Id. RFC is defined as the most the claimant can still do in a work setting despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). In assessing a claimant's RFC, the ALJ will consider all of the relevant evidence in the claimant's case record regarding both severe and non-severe impairments. 20 C.F.R. § 404.1545. This assessment is then used to determine whether the claimant can still perform his past relevant work. 20 C.F.R. § 404.1520(e). Past relevant work is defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). The ALJ will find that the claimant is not disabled if he can still perform his past relevant work, at which point the analysis will end. Otherwise, the ALJ moves to step five.

         In the fifth and final step, the ALJ will once again consider the claimant's RFC, as well as his age, education, and work experience, in order to determine whether the claimant can perform other work. 20 C.F.R. § 404.1520(a)(4)(v). Here, the Commissioner is responsible for providing “evidence that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do.” 20 C.F.R. § 404.1560(c)(2). If the claimant is unable to perform other work, he is deemed disabled; if he can make an adjustment to other available work, he is considered not disabled. 20 C.F.R. § 404.1520(g)(1).

         II. The ALJ's Analysis

         The ALJ found that at step one, Plaintiff had not engaged in gainful activity since October 25, 2010, the alleged onset date, and at step two, that he suffered from the following severe impairments: cirrhosis of the liver, hypertension, nonalcoholic steatohepatitis, attention deficit hyperactivity disorder, mood disorder, and a history of alcohol abuse. AR 20-21. Plaintiff disagrees with this determination because he also believes that he had a severe impairment of psoriasis. Opening Br. at 5.

         At the third step, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 21. The ALJ did not discuss whether Plaintiff met listing 8.05 which covers skin conditions, such as psoriasis.

         Moving to step four, the ALJ determined that Plaintiff has the RFC to perform light work. AR 22. That is, he could: lift and carry up to 10 pounds frequently and 20 pounds occasionally and stand, walk, or sit 6 hours out of an 8-hour workday with customary breaks. Id. In addition, the ALJ determined that Plaintiff could:

occasionally kneel, stoop, crawl, and crouch; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently use the upper extremities for fine and gross manipulations and reaching in all directions; sustain concentration and attention, persistence and pace in two hour blocks of time to complete a normal workday . . . interact and respond appropriately to coworkers, supervisors, and the general public . . . respond appropriately to routine changes in the work setting . . . understand, remember, and carry out . . . both detailed and complex tasks; and he would be off task 5% of the workday due to distractions from psychologically based symptoms.

Id. Based on this RFC, the ALJ determined at step four that Plaintiff is able to perform past relevant work as a “drafter designer”^[4] and denied Plaintiff's claim on this basis.^[5] AR 29-30. Plaintiff disagrees and believes that he was unable to perform past relevant work. Opening Br. at 6.

         III. Whether the ALJ Properly Considered Evidence of Plaintiff's Psoriasis

         i. Whether the ALJ Properly Evaluated Dr. ...