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Kekaula v. Berryhill

United States District Court, D. Hawaii

June 27, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Alan C. Kay United States District Judge

         For the reasons set forth below, the Court REVERSES the decision of the Commissioner and REMANDS for further administrative proceedings consistent with this Order.


         On August 28, 2014, Plaintiff Edmund Kekaula (“Plaintiff”) protectively filed an application for Social Security Disability Insurance (“SSDI”) benefits, alleging disability beginning on April 24, 2014. Administrative Record (“AR”) 166-72. The application was initially denied on December 4, 2014, and was denied again upon reconsideration on June 1, 2015. AR 13, 104-07, 109-13. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on May 19, 2016. AR 13, 26.

         On July 13, 2016, the ALJ issued her written decision finding that Plaintiff was not disabled. AR 13-21. Plaintiff filed a request with the Appeals Council to review the ALJ's decision on September 12, 2016. AR 159-65. The Appeals Council denied Plaintiff's request, finding no reason to review the ALJ's decision, and adopted the ALJ's decision as the final decision of the Commissioner on September 7, 2017. AR 1-3.

         Plaintiff filed a complaint on November 9, 2017, seeking a review of the denial of his application for SSDI benefits. ECF No. 1. On May 8, 2018, Plaintiff filed his opening brief. ECF No. 18 (“Opening Br.”). Defendant, the Acting Commissioner of Social Security (“Commissioner”), filed her answering brief on May 22, 2018. ECF No. 21 (“Ans. Br.”).

         The Court held a hearing on Tuesday, June 19, 2018 regarding Plaintiff's requested review of the Commissioner's decision.


         A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of Social Security.[1]

         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, however, 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). But reviewing courts must be cognizant of the “long-standing principles of administrative law [that] require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009); see also S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947) (if the grounds “invoked by the agency . . . are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.”)


         “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 SSA'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. “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 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 is complete. 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, at step one, that Plaintiff had not engaged in substantial gainful activity since April 24, 2014, the alleged onset date, and at step two, that he suffered from the following severe impairments: status post stroke, status post myocardial infarction, and obesity. AR 15-16.

         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 16-17.

         Moving to step four, the ALJ determined that Plaintiff has the RFC to: “perform light work as defined in 20 CFR 404.1567(b) and SSR 83-10, except that: he can perform all postural activities only occasionally, and [] he can occasionally reach, grasp, and finger with the right (nondominant) upper extremity[.]” AR 17. Based on this RFC, the ALJ determined at step four that Plaintiff is able to perform past relevant work as a “House Officer, Security at a Hotel” and therefore is not disabled. AR 19-20. The ALJ further found that, in the alternative, a determination of “not disabled” would be appropriate at step five because Plaintiff is capable of engaging in a type of substantial gainful activity (that of Gate Guard) that exists in significant numbers in the national economy. AR 20. Plaintiff disputes the ALJ's decision regarding his RFC, contending that the ALJ's assessment of his treating physician's opinions was in error. Opening Br. at 7. Plaintiff also contests the ALJ's credibility determinations. See Opening Br. at 5.

         III. The Medical Opinions of Plaintiff's Treating Physician

         The applicable regulations state that the Agency will consider all the medical opinions it receives. See 20 C.F.R. § 404.1527(b), (c). But in the realm of social security adjudications, physicians' opinions are not all created equal. “Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2). “Generally, the opinion of a treating physician must be given more weight than the opinion of an examining physician, and the opinion of an examining physician must be afforded more weight than the opinion of a reviewing physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)).

         a. The September 2014 Opinion

         On September 16, 2014, Dr. David Kwiat, Plaintiff's treating physician, diagnosed Plaintiff with stroke and right hemiparesis and reported that Plaintiff: could stand and/or walk for three hours during an eight-hour workday; could sit for three hours during an eight-hour workday; did not need a job that permitted him to shift at will from sitting, standing, or walking; could frequently lift less than ten pounds, occasionally lift ten or twenty pounds, and never lift fifty pounds; could occasionally twist, stop, crouch, and climb; could never, during the course of an eight-hour workday, grasp/turn/twist objects with his right hand or perform fine manipulations with his right fingers; could reach with his right arm for 25% of an eight-hour workday; could grasp/twist/turn objects with his left hand, perform fine manipulations with his left fingers, or reach with his left arm for 50% of an eight-hour workday; could perform low-stress work; and would likely be absent from work for about three days a month as a result of his impairments or treatment. AR 282-84. At the administrative hearing, a vocational expert testified that either limitation to a six-hour workday or the need to be absent three times per month would render Plaintiff unable to work.[2] AR 74-75.

         In December 2014, Dr. Lau, a State Agency medical consultant, reviewed Plaintiff's records and concluded that Plaintiff could engage in medium work and frequent postural activities. AR 19, 83-84. Dr. Lau opined that Plaintiff could stand and/or walk for six hours during an eight-hour workday and could sit for the same amount of time. AR 82. Dr. Lau appears to have given no opinion as to the number of days Plaintiff would need to be absent from work due to his impairments or treatment. In May 2015, another State Agency medical consultant, Dr. Matsuyama, reviewed Plaintiff's records and echoed Dr. Lau's conclusions, in large part reproducing them precisely-and again providing no opinion on the number of workdays per month Plaintiff's impairments or treatment would cause him to be absent. AR 92-97. Neither Dr. Lau nor Dr. Matsuyama examined Plaintiff. AR 19.

         In making her RFC finding, the ALJ gave “some weight, but not great weight” to Dr. Kwiat's September 2014 opinion, because it was “not based on the most recent medical evidence and is not fully supported by the evidence.” AR 17. The ALJ credited Dr. Kwiat's September 2014 opinion insofar as it supported a limitation to light work and to occasional postural activities, but she expressly credited Drs. Lau and Matsuyama's opinions (and discredited Dr. Kwiat) regarding Plaintiff's retention of some ability to use his right arm and full ability to use his left. Id. at 18. Moreover, she discredited Dr. Kwiat regarding the amount of time during a workday that Plaintiff could stand, walk, and sit and the number of workdays per month he would be absent due to his impairments or treatment. Id. at 17-19.

         1. Whether the ALJ Failed to Consider the ยง ...

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