1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PARIMAL K. SHAH, No. 2:19-cv-1184-KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS-MOTIONS

FOR SUMMARY JUDGMENT

13 v. (ECF Nos. 12, 14) 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Disability Insurance Benefits under Title II of the Social Security 19 Act.1 In his summary judgment motion, plaintiff contends the Administrative Law Judge (“ALJ”) 20 erred by failing to treat his PTSD as severe, and by improperly rejecting his own testimony and 21 certain opinions of three supporting physicians. The Commissioner filed an opposition and filed 22 a cross–motion for summary judgment. 23 After considering the parties’ written briefing, the record, and the applicable law, the court 24 DENIES the Commissioner’s cross-motion for summary judgment, GRANTS IN PART 25 plaintiff’s motion for summary judgment, and REMANDS for further proceedings. 26

27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes. (ECF 28 Nos. 7, 8.) 1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2

2 On October 6, 2017, plaintiff filed a claim for disability, alleging an onset date of

3 November 30, 2016. (Se e Administrative Transcript (“AT”) 70-71.) Plaintiff listed as medical

4 conditions the following: “Ischemic heart disease, heart attack, stents placements; PTSD (anxiety

5 sleep disturbance paranoia etc.); Chronic pain: neck back hips shoulders legs; Osteoporosis;

6 Glaucoma; Planter fasciitis; Gulf War Syndrome (IBS insomnia pain etc.); Diabetes mellitus type

7 2; Tinnitus with bilateral hearing lo ss; Hiatal hernia.” (Id.) Plaintiff’s application was denied 8 initially and again upon reconsideration. (AT 70-81; 82-97.) Plaintiff, aided by an attorney, 9 sought review of these denials with an ALJ. (AT 118.) At a November 20, 2018 hearing, 10 plaintiff testified about his conditions, and the ALJ heard testimony from a vocational expert 11 regarding plaintiff’s ability to perform his past or other work. (AT 32-68.) 12 On January 25, 2019, the ALJ issued a decision determining plaintiff was not disabled 13 from his onset date through the present. (AT 15–26.) At Step One, the ALJ concluded that 14 plaintiff had not engaged in substantial gainful activity since November 30, 2016, his alleged 15 disability onset date. (AT 17.) At Step Two, the ALJ found that plaintiff had the following 16 severe impairments: degenerative disc disease; mild osteoarthritis of the bilateral hips; adhesive

17 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 18 engage in any substantial gainful activity” due to “a medically determinable physical or mental 19 impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571—76; Bowen v. Yuckert, 482 U.S. 20 137, 140—42 (1987). The following summarizes the sequential evaluation: Step One: Is the claimant engaging in substantial gainful activity? If so, the 21 claimant is found not disabled. If not, proceed to step two. Step Two: Does the claimant have a “severe” impairment? If so, proceed to step 22 three. If not, then a finding of not disabled is appropriate. 23 Step Three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the 24 claimant is automatically determined disabled. If not, proceed to step four. Step Tour: Is the claimant capable of performing past relevant work? If so, the 25 claimant is not disabled. If not, proceed to step five. Step Five: Does the claimant have the residual functional capacity to perform any 26 other work? If so, the claimant is not disabled. If not, the claimant is disabled. 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 capsulitis; bilateral shoulders; and coronary artery disease. (Id.) Relevant here, the ALJ also

2 found plaintiff’s PTSD to “not cause more than minimal limitation in [his] ability to perform

3 basic mental work activi t i es.” (AT 18.) The ALJ determined at Step Three that plaintiff’s

4 impairments did not meet or medically equal the severity of an impairment listed in Appendix 1.

5 (Id.) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1).)

6 Based on this information, the ALJ found plaintiff had the residual functional capacity

7 (“RFC”) to perform light work, exc ept that: 8 [He] cannot climb ladders, ropes, or scaffolds; can occasionally perform postural activities such as stooping, crouching, or crawling; 9 can occasionally perform overhead reaching; frequently perform other reaching; and frequently perform handling, fingering, and 10 feeling. 11 (AT 19-20.) In reaching this conclusion, the ALJ stated she considered plaintiff’s symptom 12 testimony, the objective medical evidence in the record, and the opinion evidence of multiple 13 physicians. (AT 20.) Relevant here, the ALJ found plaintiff’s testimony “concerning the 14 intensity, persistence, and limiting effects of [his] symptoms are not entirely consistent with the 15 medical evidence and other evidence in the record.” (AT 22.) This included a comparison of his 16 physical and mental functionality to various exam records, his receiving “generally conservative 17 treatment for his impairments[,]” and “normal level of daily activity.” (Id.) The ALJ also found 18 the more-limiting aspects of the medical opinions of Dr. Egan, Dr. Alpuerto, and Dr. Paltenghi to 19 be inconsistent with the record. (AT 23-24.) Finally, the ALJ noted that according to the medical 20 records, plaintiff’s PTSD symptoms were improving, and that plaintiff’s functioning “was 21 decreased slightly [due to] normal life stressors, [not PTSD].” (AT 24.) Ultimately, the ALJ 22 concluded at Step Four that plaintiff was capable of performing his past relevant work, or 23 alternatively that he could perform other jobs existing in significant numbers in the national 24 economy. (AT 25–26.) 25 On May 29, 2019, the Appeals Council denied plaintiff’s request for review. (AT 1–6.) 26 Plaintiff then filed this action within sixty days requesting judicial review of the Commissioner’s 27 final decision; the parties filed cross–motions for summary judgment. (ECF Nos. 1, 12, 14, 15.) 28 /// 1 II. LEGAL STANDARD

2 The court reviews the Commissioner’s decision de novo, and should reverse “only if the

3 ALJ's decision was not s u pported by substantial evidence in the record as a whole or if the ALJ

4 applied the wrong legal standard.” Buck v. Berryhill, 869 F. 3d 1040, 1048 (9th Cir. 2017).

5 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such

6 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

7 Edlund v. Massanari, 253 F. 3d 115 2, 1156 (9th Cir. 2001). “The ALJ is responsible for 8 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 9 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 10 rational interpretation.” Tommasetti v. Astrue, 533 F. 3d 1035, 1038 (9th Cir. 2008). Further, the 11 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F. 3d at 1048. 12 III. ISSUES PRESENTED 13 Plaintiff contends the ALJ’s decision is based on legal error not supported by substantial 14 evidence. Specifically, plaintiff alleges error in: (A) the ALJ’s Step Two finding that plaintiff’s 15 PTSD is not severe; and (B) the ALJ’s RFC formulation. With regard to the RFC formulation, 16 plaintiff alleges error in the ALJ’s assessment of plaintiff’s PTSD—particularly in that the ALJ 17 failed to consider it in combination with plaintiff’s coronary artery disease, as noted by Dr. James 18 Egan. Plaintiff also argues the ALJ erred in evaluating his symptom testimony and the opinions 19 of three of plaintiff’s physicians. Plaintiff argues that when any or all of this evidence is credited 20 as true, the only remedy is to remand for benefits. (ECF No. 12.) 21 The Commissioner argues the ALJ adequately concluded that plaintiff’s PTSD was non- 22 severe, as plaintiff’s daily activities, conservative treatment, and medical opinions reflected mild 23 limitations of plaintiff’s condition. Further, the Commissioner argues the ALJ sufficiently 24 detailed why she (properly) discounted both plaintiff’s symptom testimony and the opinions of 25 the physicians. Thus, the Commissioner argues the decision is free of legal error and supported 26 by substantial evidence, which should result in affirmance. Alternatively, the Commissioner 27 argues any finding for plaintiff should result in a remand for further proceedings, as plaintiff 28 challenges ambiguity in the decision. (ECF No. 14.) 1 IV. DISCUSSION

2 A. The ALJ’s classification of plaintiff’s PTSD is harmful error.

3 1. Step Tw o Analysis

4 At Step Two, the ALJ is to classify a claimant’s impairments as either “severe” or “non-

5 severe.” See 20 C.F.R. § 404.1520. A “severe” impairment is one that significantly limits the

6 physical or mental ability to perform basic work activities. Id. However, “[a]n impairment or

7 combination of impairments may b e found ‘not severe only if the evidence establishes a slight 8 abnormality that has no more than a minimal effect on an individual's ability to work.’” Webb v 9 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th 10 Cir. 1996)). The ALJ’s conclusion must be “clearly established by medical evidence.” Id. The 11 Step Two assessment is a “de minimus screening to dispose of groundless claims.” Edlund, 253 12 F3d at 1158. Any failure to classify an impairment at Step Two harmless if the ALJ considered 13 the impairment when assessing the RFC. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 14 Plaintiff argues that the ALJ’s classification of his PTSD as non-severe was error. 15 Plaintiff notes the record contains multiple medical reports demonstrating his PTSD diagnosis, 16 which the ALJ either completely ignored, “cherry-picked,” or misconstrued in an effort to 17 downplay the impairment. Further, plaintiff argues that so downplaying, the ALJ inappropriately 18 isolated his PTSD impairment instead of considering its “combined effect” alongside his coronary 19 artery disease—as noted by Dr. Egan. 20 The undersigned is troubled by the ALJ’s treatment of plaintiff’s PTSD at Step Two. 21 First, the ALJ stated, in characterizing the impairment as non-severe, that “[t]reatment notes 22 indicate a history of PTSD but no mental health visits documented since 2011.” (AT 18.) The 23 ALJ then states—in the very next sentence—that plaintiff “started mental health treatment again 24 in 2017.” This inconsistency appears inexplicable, especially because the ALJ concludes this 25 paragraph by discussing some of plaintiff’s numerous medical records demonstrating treatment of 26 his PTSD by mental health professionals at the VA. Second, plaintiff’s medical records reflect 27 (as the ALJ found) that plaintiff’s mental symptoms are sometimes aggravated by “situational 28 stressors.” (See, e.g., AT 394.) However, the ALJ’s scant analysis of plaintiff’s PTSD at Step 1 Two ignores the large amount of data indicating the impairment is something beyond a “slight

2 abnormality.” (See, e.g., AT 985-99, 1009-16, 1183-92, 1211-19, 1672-79, 1992-98, 2201-08,

3 2218-25, 2260-67.) As p l aintiff argues, the ALJ’s characterization of plaintiff’s PTSD appears to

4 be a “cherry-picking” of the record—of which courts in the Ninth Circuit have consistently

5 disapproved. See, e.g., Hutchinson v. Colvin, 2016 WL 6871887, *4 (W.D. Wash., Nov. 22,

6 2016) (noting the ALJ’s treatment of the evidence at Step Two suggested improper “cherry-

7 picking” to support the ALJ’s decis ion “while failing to address aspects of the record supporting a 8 finding of severe limitations.”) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014)). 9 Third, plaintiff is correct that the ALJ seems to have ignored, at Step Two, Dr. Egan’s diagnosis 10 that plaintiff’s PTSD augments his other impairments. (AT 2281.) Smolen, 80 F.3d at 1290 11 (“[A]t the step two inquiry, [] the ALJ must consider the combined effect of all of the claimant's 12 impairments on her ability to function, without regard to whether each alone was sufficiently 13 severe.”) (citing 42 U.S.C. § 423(d)(2)(B)). In sum, the ALJ has failed to “clearly establish” that 14 plaintiff’s PTSD is non-severe at Step Two. Webb, 433 F.3d at 687 (“[O]n the record that does 15 exist, the ALJ's reasons for rejecting Webb's complaints at step two are not substantial enough to 16 meet the “clear and convincing” standard when balanced against Webb's doctors' 17 contemporaneous observations, some objective tests and Webb's subjective complaints.”). 18 Further, while the ALJ discussed plaintiff’s PTSD when formulating the RFC, there are 19 errors in that analysis (discussed below) that preclude a ‘harmless’ designation at Step Two. 20 Lewis, 498 F.3d at 911; cf. also Delgado v. Comm'r., 500 F. App'x 570 (9th Cir. 2012) (finding 21 error at Step Two where ALJ disregarded minimal evidence from plaintiff’s physician regarding 22 his impairments, and reversing where ALJ stopped at Step Two); Ormberg v. Astrue, 254 F. 23 App'x 589, 590–91 (9th Cir. 2007) (finding error at Step Two for failing to consider medical 24 evidence of sleep apnea at step two, and reversing because “[p]laintiff's sleep apnea imposed 25 additional functional limitations not considered by the ALJ at the later steps of the process.”); 26 with Cramer v. Berryhill, 706 F. App'x 385 (9th Cir. 2017) (finding any error to find impairments 27 severe at Step Two to be harmless because ALJ considered them in formulating RFC). 28 /// 1 2. RFC Formulation of Mental Limitations

2 Here, the RFC formulation limited plaintiff to light work with certain physical exceptions,

3 and did not include any l i m itations due to plaintiffs’ PTSD or other mental impairments. (AT 19-

4 20.) The ALJ did not include any mental limitations in the RFC because she found the medical

5 evidence showed that plaintiff suffered no more than mild limitations in his mental faculties. The

6 ALJ noted that plaintiff “has generally been observed to be in no acute distress,” and his

7 “[m]ental status examinations have also been generally within normal limits with fair memory 8 and attention.” (AT 22 (citing AT 2137, 2157, 2179, 2205).) The ALJ also noted that in an 9 October 2016 mental examination, Dr. Coate remarked: 10 This veteran is a very high functioning physician, who is self- employed. He continues to have PTSD symptoms which appear to 11 be improving. He reports depression and anxiety which are secondary to PTSD. His functioning has decreased slightly but I am 12 not convinced that this is due the PTSD symptoms or his military service but rather the normal life stressors. 13 14 (AT 24 (citing AT 1823).) The ALJ found this opinion to be persuasive "as supported by the 15 record as a whole as discussed herein including his minimal mental health treatment generally 16 normal mental status findings and reported improvement with reduced life stressors.” (Id.) The 17 ALJ also cited another examination from two weeks later where the physician noted plaintiff’s 18 PTSD issues. (AT 25 (citing AT 1261).) The ALJ noted plaintiff had undergone examinations in 19 2010 and 2012, but found these records to lack persuasiveness because they were “remote in time 20 and superseded by later [] examinations in 2016 and 2017.” (Id.) The ALJ also explicitly relied 21 on a state agency consultant who recommended limitations to simple tasks “with limited public 22 and/or coworker contact.” (Id. (citing AT 88).) Finally, the ALJ cited to plaintiff’s testimony as 23 to the intensity and persistence of his PTSD symptoms, but found this testimony inconsistent with 24 the medical and opinion records and his daily activities. (AT 22.) Particularly, the ALJ noted 25 multiple times that plaintiff had travelled to India to stay with family, could study for and pass his 26 board exams in 2017, could work part time as a locum tenens (temporary) physician, and could 27 generally care for himself. (Id.) The ALJ found this evidence demonstrated that plaintiff’s 28 “expressed symptoms and limitations were not as severe as he alleged.” 1 The undersigned might find the ALJ’s analysis supported by substantial evidence if not

2 for two particularly glaring issues. First, the court notes that many of the medical records

3 showing “conservative tr e atment” and personal daily activities—each indicating how plaintiff’s

4 PTSD is no more than a mild impairment—are from the years just prior to the ALJ’s decision.

5 Normally, it would not be in error to focus on records, exams, and medical opinions from this

6 time period. But as the ALJ herself noted, these records were from a time when plaintiff had

7 already stopped working. Dr. Egan stated plaintiff undertook “substantial behavior 8 modifications” after his heart surgery almost a decade ago, and one such modification appears to 9 be plaintiff’s decision to limit his work hours; this occurred well before he applied for disability. 10 (AT 2281, see also AT 18 (citing AT 2224).) Further, the undersigned cannot see the relevance 11 in plaintiff’s ability to take a flight to India to enjoy leisure time, or his ability to walk or prepare 12 his own meals, on whether his PTSD can withstand the rigors of a full work week. Fair v. 13 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable to 14 what may be the more grueling environment of the workplace.”) Simply, it is a logical fallacy to 15 conclude that plaintiff’s mental limitations do not preclude full time work because they did not 16 affect him when he was not working. To withstand scrutiny, the ALJ’s analysis of plaintiff’s 17 PTSD limitations must be based on medical or other evidence from a time period when plaintiff 18 was still working. 20 C.F.R. § 404.1545; see also SSR 96-8p (“Ordinarily, RFC is an assessment 19 of an individual's ability to do sustained work-related physical and mental activities in a work 20 setting on a regular and continuing basis. A regular and continuing basis means 8 hours a day, for 21 5 days a week, or an equivalent work schedule.”); Willis v. Callahan, 979 F. Supp. 1299, 1305 22 (D. Or. 1997) (“If the claimant has stopped working, however, his or her residual functional 23 capacity is determined by asking whether the claimant can work an eight-hour day. Thus, once a 24 claimant has stopped working, she is considered disabled if she is only able to perform part-time 25 work.”) (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). 26 The ALJ noted that records exist from a time period prior to when plaintiff stopped 27 working, but she appears to disregard them simply because they are older. (AT 25.) It is not lost 28 on the undersigned that, at the first four steps, the burden falls to plaintiff to proffer evidence of 1 his disability. Bowen, 482 U.S. at 146 n.5. Further, the undersigned recognizes that there may be

2 a gap concerning plaintiff’s mental health treatment, as it appears plaintiff did not seek treatment

3 for his PTSD between 20 1 1 and 2016. (See AT 18.) However, plaintiff testified that his ability

4 to work full time was limited by his PTSD (among other conditions), and Dr. Egan corroborated

5 this testimony in his October 2018 letter. Thus, it falls to the ALJ to provide the reasons why this

6 testimony should be discounted, and in doing so the ALJ must rely on records that are

7 “relevant.”3 20 C.F.R. § 404.1545 (“We will assess your residual functional capacity based on all 8 the relevant evidence in your case record.”). 9 Correspondingly, the ALJ does not appear to have treated at all Dr. Egan’s opinion that 10 plaintiff’s coronary artery disease may be exacerbated by plaintiff’s PTSD (and other emotional 11 stressors) if he were to return to full time work. (AT 2281.) In an October 2018 letter, plaintiff’s 12 cardiologist Dr. Egan stated: 13 Over the ensuing seven years [since his heart surgery, plaintiff] has done very well from a clinical standpoint. This is attributable to his 14 careful adherence to recommended medications and substantial behavior modification. One aspect of the later has included 15 adjusting his employment schedule to avoid undue emotional stress, which may cause release of certain chemicals into the bloodstream 16 that increase the heart rate and blood pressure, both of which may result in insufficient blood flow to the heart muscle and increase the 17 risk of recurrent heart attack or angina pectoris. This possibility is augmented in patients with a diagnosis of post-traumatic stress 18 disorder, which is one of [plaintiff’s] co-diagnoses. 19 (Id.) Dr. Egan concluded plaintiff could work “up to a four-hour daily work schedule,” but the 20 ALJ found Dr. Egan’s opinion to lack persuasiveness. (AT 23.) The ALJ stated the doctor’s own 21 treatment notes (as well as the letter itself) indicated plaintiff’s “cardiac condition was stable and 22 asymptomatic,” and (again) noted plaintiff received conservative treatment and undertook 23 “extensive [] activities, including studying for and taking his medical boards, international travel, 24 and regular exercise.” (Id.) While the ALJ’s analysis of plaintiff’s cardiac condition may suffice 25

3 It may be that records do exist from the time when plaintiff worked demonstrating the severity, 26 or lack thereof, of his PTSD. It also may be that another mental health professional might 27 contradict Dr. Egan, thus requiring the ALJ to resolve the inconsistency. These are just two examples of what a court might find relevant. The key, however, is for this evidence to evaluate 28 plaintiff’s PTSD as applied to full time work. 1 as the condition stands on its own, the undersigned finds no discussion on its combined effect

2 with plaintiff’s PTSD—as Dr. Egan opines. 42 U.S.C. § 423 (“In determining whether an

3 individual’s physical or m ental impairment or impairments are of a sufficient medical severity

4 that such impairment or impairments could be the basis of eligibility under this section, the

5 Commissioner of Social Security shall consider the combined effect of all of the individual’s

6 impairments without regard to whether any such impairment, if considered separately, would be

7 of such severity.”). The failure to a ddress this issue at the RFC stage constitutes error. 8 3. Remedy 9 Plaintiff requests a single remedy—that the court remand for benefits. (ECF No. 12 at 24- 10 25.) This cannot be had, as Dr. Egan’s opinion and the missing analysis on plaintiff’s PTSD (as it 11 applies to plaintiff’s ability to work full time) creates ambiguities requiring resolution. It may 12 very well be that the ALJ can obtain other medical opinions indicating plaintiff’s PTSD, or its 13 combination with his coronary artery disease, has little effect on plaintiff’s ability to work full 14 time (either in his previous employment or in other available jobs). But this is for the ALJ, and 15 not the court, to resolve. Edlund, 253 F.3d at 1156 (“The ALJ is responsible for determining 16 credibility, resolving conflicts in medical testimony, and resolving ambiguities.”). Thus, a 17 remand for further proceedings is required. 18 B. The court refrains from addressing plaintiff’s other contentions. 19 Because further proceedings are required, the court will not explicitly rule on plaintiff’s 20 other contentions (regarding plaintiff’s other physical conditions, and the ALJ’s analysis of 21 plaintiff’s symptom testimony and the medical opinions and evidence thereof). (See ECF No. 12 22 at 15-17; 21-23.) However, the court would be remiss if it failed to mention that the ALJ’s 23 analysis concerning plaintiff’s other physical impairments appears well-reasoned. On remand, it 24 is (of course) within the ALJ discretion as to how much additional analysis will be required on 25 these issues. See, e.g., 20 C.F.R. § 983 (“Any issues relating to your claim may be considered by 26 the administrative law judge whether or not they were raised in the administrative proceedings 27 leading to the final decision in your case.”). 28 /// wAODE SLD UV VE LONTEUING IN UETPOTIL A POO Te AY tt OV tt

1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The Commissioner’s motion for summary judgment (ECF No. 14) is DENIED; 4 2. Plaintiff Shah’s motion for summary judgment (ECF No. 12) is GRANTED; 5 3. This matter is REMANDED for further administrative proceedings; and 6 4. The Clerk is directed to enter judgment in plaintiffs favor and close the case. 7 || Dated: June 4, 2020 Foci) Aharon 9 KENDALL

UNITED STATES MAGISTRATE JUDGE

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