United States District Court, D. Hawaii
DONNA S. KIMBLE Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF
SOCIAL SECURITY AND REMANDING FOR FURTHER
C. Kay, Sr. United States District Judge.
reasons discussed below, the Court REVERSES the decision of
the Commissioner and REMANDS to the ALJ for further
administrative proceedings consistent with this Order.
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
January 10, 2017, the ALJ issued her written
decision 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.
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.
Court held a hearing on May 17, 2019 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, 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).
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).
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”).
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 Social Security Administration's (“SSA”)
Five-Step Process for Determining Disability
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). “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.
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
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.
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. §
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.
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).
The ALJ's Analysis
Steps One, Two, and Three
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.
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
Steps Four and Five
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
[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
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.
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.
Whether the ALJ Improperly Rejected the Opinions of
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. Opening Br. at
Standards for Weighing Medical Opinion Evidence
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).
must distinguish among the opinions of three types of
physicians when evaluating an ALJ's weighing of medical
evidence. 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)).
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.
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. §
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