United States District Court, D. Hawaii
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF
SOCIAL SECURITY AND REMANDING FOR FURTHER
C. Kay United States District Judge
reasons set forth below, the Court REVERSES the decision of
the Commissioner and REMANDS for further administrative
proceedings consistent with this Order.
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.
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.
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
Court held a hearing on Tuesday, June 19, 2018 regarding
Plaintiff's requested review of the Commissioner's
district court has jurisdiction pursuant to 42 U.S.C. §
405(g) to review final decisions of the Commissioner of
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.
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.”)
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
The SSA's Five-Step Process for Determining
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.
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
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).
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).
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.
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).
The ALJ's Analysis
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.
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.
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.
The Medical Opinions of Plaintiff's Treating
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)).
The September 2014 Opinion
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. AR 74-75.
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.
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.
Whether the ALJ Failed to Consider the § ...