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Kimble v. Berryhill

United States District Court, D. Hawaii

May 23, 2019

DONNA S. KIMBLE Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          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 discussed below, the Court REVERSES the decision of the Commissioner and REMANDS to the ALJ for further administrative proceedings consistent with this Order.

         BACKGROUND

         On September 2, 2014, Plaintiff Donna S. Kimble (“Plaintiff”) filed a Title II application for a period of disability and disability insurance benefits (“SSDI”) and a Title XVI application for supplemental security income (“SSI”), alleging disability beginning on January 6, 2013. Administrative Record (“AR”) 234-44. The applications were initially denied on February 5, 2015 and then denied upon reconsideration on July 10, 2015. AR 174-81, 190-97. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on December 14, 2016 and at which Plaintiff appeared and testified. AR 198-200.

         On January 10, 2017, the ALJ issued her written decision[1] finding that Plaintiff was not disabled. AR 22-48. Finding no reason to review the ALJ's decision, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the final decision of the Commissioner on November 13, 2017. AR 5-10.

         Plaintiff filed a Complaint on August 6, 2018, seeking a review of the denial of her applications for SSDI and SSI benefits. ECF No. 1. On December 31, 2018, Plaintiff filed her Opening Brief (“Opening Br.”). ECF No. 16. On March 4, 2019, Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security (the “Commissioner”), filed her Answering Brief (“Ans. Br.”). ECF No. 18. Plaintiff filed a Reply Brief (“Reply Br.”) on March 31, 2019.

         The Court held a hearing on May 17, 2019 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).

         But reviewing courts must be cognizant of the “longstanding 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”).

         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 (“SSA”) Five-Step Process for Determining Disability

         The Social Security regulations set forth a five-step sequential process for determining whether a claimant is disabled. Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2014); see 20 C.F.R. § 404.1520(a)(4).[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 v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations omitted in original); see 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof as to steps one through four, whereas the burden shifts to the Commissioner for step five. Tacket, 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, the ALJ 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 [her] 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 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 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.; 20 C.F.R. § 404.1520(a)(4)(iv). RFC is defined as the most the claimant can still do in a work setting despite her 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 her 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 she can still perform her past relevant work, at which point the analysis will end. Otherwise, the ALJ moves on to step five.

         In the fifth and final step, the ALJ will once again consider the claimant's RFC, as well as her 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 No. in the national economy that [the claimant] can do.” 20 C.F.R. § 404.1520(g)(1).

         II. The ALJ's Analysis

         A. Steps One, Two, and Three

         The ALJ found that at step one, Plaintiff had not engaged in substantial gainful activity since January 6, 2013, the alleged disability onset date, and at step two, that she suffered from the following severe impairments: major depressive disorder; post traumatic stress disorder; history of headaches; fibromyalgia; degenerative disk disease of the cervical spine; history of endometriosis; history of chronic pelvic pain; interstitial cystitis; Hunner's ulcers status-post cystoscopy; and asthma. AR 54-56.

         At the third step, the ALJ found that Plaintiff did not have an impairment or 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 56-58. Specifically, the ALJ found that Plaintiff's spinal condition did not meet the listed criteria for disorders of the spine, and that her asthma condition did not meet the listed criteria for asthma. AR 56; 20 C.F.R. Part 404, Subpart P, Appendix 1, 1.04 and 3.03. The ALJ found that Plaintiff's mental impairments, considered singly and in combination, did not meet or medically equal the criteria related to depressive, bipolar and related disorders, and anxiety and obsessive-compulsive disorders. AR 56-58; 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.04 and 12.06. Plaintiff does not appear to challenge any of the findings the ALJ made at these steps. See generally Opening Br.

         B. Steps Four and Five

         Moving to steps four and five, the ALJ determined Plaintiff's RFC to be medium work, which involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds, with additional limitations. AR 58; see also 20 C.F.R. § 404.1567(c). The ALJ determined that:

[Plaintiff] cannot climb ladders, ropes, or scaffolds. She can frequently climb ramps or stairs. The claimant is limited to frequent overhead reaching bilaterally. She is limited to low-stress work, which is defined as simple and routine tasks with short instructions and simple, work-related decisions. The claimant is limited to gradual and infrequent workplace changes. Furthermore, the claimant must avoid concentrated exposure to extreme temperatures, wetness, humidity, dust, fumes, pulmonary irritants, and hazards. Moreover, the claimant can perform work that requires no interaction with the general public.

AR 58. Based on this RFC, the ALJ determined at step four that Plaintiff is unable to perform any past work as a “counselor” or “nanny.” AR 73. However, the ALJ determined at step five that a finding of “not disabled” is appropriate because Plaintiff is capable of making a successful adjustment to other work that exists in significant No. in the national economy. AR 73- 74.

         Plaintiff asserts that the ALJ's finding that she is “not disabled” is not grounded in substantial evidence, and therefore the ALJ erred in concluding that she is not disabled because there is other work she can perform. Opening Br. at 1. Specifically, Plaintiff argues that the ALJ improperly rejected the opinions of Plaintiff's doctors and improperly rejected Plaintiff's own testimony. Opening Br. at 1-2.

         Finally, the Court notes that throughout the ALJ's decision, she states she adopted a light work RFC with additional limitations. AR 68, 70, 72. However, the ALJ, without any explanation, ultimately adopted a medium work RFC with additional limitations. AR 58, 73-74. Plaintiff points this inconsistency out only in footnotes, Opening Br. at 22 n.2; Reply Br. at 9 n.2 and the Commissioner only discussed it at the hearing held on May 17, 2019. However, the Court notes that at the hearing before the ALJ, the vocational expert testified that there were adequate medium occupations with additional limitations and adequate light occupations with additional limitations that Plaintiff could perform. AR 103-05. Thus, although this discrepancy within the ALJ's decision is somewhat disturbing, it appears that it had no impact on the ALJ's ultimate disability determination.

         III. Whether the ALJ Improperly Rejected the Opinions of Plaintiff's Physicians

         In her Opening Brief, Plaintiff challenges the ALJ's rejection of four medical opinions as improper. Opening Br. at 12-15. Three opinions are from three of Plaintiff's treating physicians: Dr. Aliza Kumpinsky, a neurologist, Dr. Samir Belagaje, another neurologist, and Dr. Daniel Cucco, a psychiatrist; and the remaining opinion is from Dr. Jessie Al-Amin, a consultative examining physician.[4] Opening Br. at 12- 13.

         A. Standards for Weighing Medical Opinion Evidence

         In assessing whether or not a claimant is disabled, the ALJ must “develop the record and interpret the medical evidence, ” considering the “combined effect of all of claimant's impairments, regardless of whether any one impairment, considered alone, would be of sufficient severity. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citing Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996); 20 C.F.R. § 416.923). However, the ALJ is not obligated to discuss “every piece of evidence” where the evidence is “neither significant nor probative.” Id. Ultimately, “it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545).

         Courts must distinguish among the opinions of three types of physicians when evaluating an ALJ's weighing of medical evidence.[5] Garrison v. Colvin, 759 F.3d 995, 1012 (2014). Courts distinguish between the opinions of “(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). “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)).

         “Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability.” Ukolov, 420 F.3d at 1004. A treating physician's opinion should be given controlling weight if the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record. Ghanim, 763 F.3d at 1160 (alteration in original, citation omitted). “To reject an uncontradicted opinion of a treating physician, the ALJ must provide ‘clear and convincing reasons that are supported by substantial evidence.'” Id. at 1160-61 (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).

         “Even if a treating physician's opinion is contradicted, the ALJ may not simply disregard it.” Id. at 1161. Rather, to determine how much weight to give a treating physician's opinion, the ALJ must consider the following factors: the length of the treatment relationship and frequency of examination by the treating physician; the nature and extent of the treatment relationship between the patient and the treating physician; the supportability of the treating physician's opinion with medical evidence; the consistency of the treating physician's opinion with the record as a whole; and whether or not the treating physician is a specialist. Id.; see also 20 C.F.R. § 404.1527(c)(1)-(6).

         An ALJ may only reject a treating physician's contradicted opinions by providing “specific and legitimate reasons that are supported by substantial evidence.” Ghanim, 763 F.3d at 1161. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Tommasetti v. Astrue,533 F.3d 1035, 1041 (9th Cir. 2008) (alteration in original). “The ALJ must do more than state conclusions. [She] must set forth [her] own interpretations and explain why they, rather than the doctors', are correct.” Garrison, 759 F.3d at 1012. “[A]n ALJ errs when [she] rejects a medical opinion or assigns it little weight while doing nothing more than ...


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