1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 DEBBIE R., Case No. 2:18-cv-08022-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17 I. PROCEDURAL HISTORY 18 Plaintiff1 filed a complaint seeking review of Defendant Commissioner of 19 Social Security’s (“Commissioner”) denial of her application for Disability 20 Insurance Benefits (“DIB”). The parties filed consents to proceed before the 21 undersigned United States Magistrate Judge [Dkts. 9, 10] and briefs addressing 22 disputed issues in the case [Dkt. 20 (“Pltf.’s Br.”); Dkt. 25 (“Def.’s Br.”); Dkt. 26 23 (Pltf.s Reply)]. The Court has taken the parties’ briefing under submission without 24 oral argument. For the reasons discussed below, the Court finds that this matter 25

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27 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the 28 Judicial Conference of the United States. 1 should be remanded for further proceedings. 2 II. ADMINISTRATIVE DECISION UNDER REVIEW 3 On February 17, 2015, Plaintiff filed an application for DIB, alleging 4 disability beginning February 1, 2014. [Dkt. 17, Administrative Record (“AR”) 5 185-186.] The Commissioner denied her initial claim for benefits on July 10, 2015. 6 [AR 124-127.] On July 25, 2017, a hearing was held before Administrative Law 7 Judge (“ALJ”) Henry Koltys. [AR 48-78.] On August 28, 2017, the ALJ issued a 8 decision denying Plaintiff’s request for benefits. [AR 11-21.] Plaintiff requested 9 review from the Appeals Council, which denied review on July 19, 2018. [AR 1-5.] 10 The ALJ evaluated Plaintiff’s entitlement to DIB pursuant to the 11 Commissioner’s standard five-step sequential evaluation process. As an initial 12 matter, the ALJ determined that Plaintiff acquired sufficient quarters of coverage to 13 remain insured through September 30, 2017. [AR 13.] Therefore, Plaintiff was 14 required to establish disability on or before that date to recover disability insurance 15 benefits. Applying the five-step sequential evaluation process, the ALJ found that 16 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 17 ALJ concluded that Plaintiff had not engaged in substantial gainful activity since 18 February 1, 2014. [AR 13 (citing 20 C.F.R. § 416.971).] At step two, the ALJ 19 found that Plaintiff suffered from the following severe impairments: hypertension, 20 diabetes mellitus, fibromyalgia, mild degenerative disc disease of the lumbar and 21 thoracic spine, and obesity. [AR 13.]2 The ALJ determined at step three that 22 Plaintiff did not have an impairment or combination of impairments that meets or 23 medically equals the severity of one of the listed impairments. [AR 16 (citing 20 24 C.F.R. Part 404, Subpart P, Appendix 1; 20 C.F.R. §§ 416.920(d), 416.925, and 25

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27 2 At step two, the ALJ also found that Plaintiff had a medically determinable impairment of depression, however it was not severe. [AR 14.] (citing 20 C.F.R. § 28 404.1522 et seq.] 1 416.926.] 2 Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) 3 to perform a range of light work, except she can frequently stoop and crouch; 4 occasionally climb ramps/stairs, kneel and crawl; and, she is precluded from 5 climbing ladders, ropes and scaffolds. [AR 16.] Applying this RFC, the ALJ found 6 at step four that Plaintiff was capable of performing her past relevant work as a 7 retail cashier and customer service representative and thus she is not disabled. [AR 8 20.] 9 III. GOVERNING STANDARD 10 Under 42 U.S.C. § 405(g), this Court reverses only if the Commissioner’s 11 “decision was not supported by substantial evidence in the record as a whole or if 12 the [Commissioner] applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 13 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion,” and “must be 15 ‘more than a mere scintilla,’ but may be less than a preponderance.” Id. at 1110-11; 16 see Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations 17 omitted). This Court “must consider the evidence as a whole, weighing both the 18 evidence that supports and the evidence that detracts from the Commissioner’s 19 conclusion.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 20 2015) (quoting Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). If “the 21 evidence is susceptible to more than one rational interpretation, we must uphold the 22 [Commissioner’s] findings if they are supported by inferences reasonably drawn 23 from the record.” Molina, 674 F.3d at 1111. 24 IV. DISCUSSION 25 In her sole issue, Plaintiff contends that the ALJ erred at step two of the 26 sequential evaluation by finding that she did not suffer from a severe mental 27 impairment prior to her date last insured. [Pltf’s Br. at 4-11.] The Court agrees and 28 finds that remand is appropriate. 1 A. Relevant Law 2 At step two of the sequential evaluation, the ALJ determines whether the 3 claimant has a medically “severe” impairment or combination of impairments. See 4 20 C.F.R. §§ 404.1520(a)(4) (ii); see also Smolen, 80 F.3d 1273, 1289–90 (9th Cir. 5 1996) (citing Bowen v. Yuckert, 482 U.S. 140–41 (1987)). An impairment is severe 6 when it significantly limits a claimant’s “physical or mental ability to do basic work 7 activities” and lasted or is expected to last “for a continuous period of at least 12 8 months.” See 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), (c), 404.1521(a); accord 9 20 C.F.R. §§ 416.920(a)(4)(ii), (c), 416.909. Basic work activities means “the 10 abilities and aptitudes necessary to do most jobs,” including: (1) physical functions 11 such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or 12 handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, 13 carrying out, and remembering simple instructions; (4) use of judgment; (5) 14 responding appropriately to supervision, co-workers and usual work situations; and 15 (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 16 416.921(b). 17 The Supreme Court has recognized that the Commissioner’s “severity 18 regulation increases the efficiency and reliability of the evaluation process by 19 identifying at an early stage those claimants whose medical impairments are so 20 slight that it is unlikely they would be found to be disabled even if their age, 21 education, and experience were taken into account.” Yuckert, 482 U.S. at 153. 22 However, the regulation must not be used to prematurely disqualify a claimant. Id. 23 at 158 (O’Connor, J., concurring). By its own terms, the evaluation at step two is a 24 de minimis test intended to weed out the most minor of impairments. Id. at 153-54; 25 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have defined the 26 step-two inquiry as a de minimis screening device to dispose of groundless 27 claims.”). An impairment is not severe only if the evidence establishes a slight 28 abnormality that has only a minimal effect on an individual’s ability to work. 1 Smolen, 80 F.3d at 1290 (internal citation omitted). 2 B. The ALJ’s Decision 3 The ALJ found that Plaintiff’s medically determinable impairment of 4 depression caused mild limitations in understanding, remembering, or applying 5 information; interacting with others; concentrating, persisting, or maintaining pace; 6 and a mild limitation in adapting or managing herself. [AR 14-15.] Because the 7 ALJ found that Plaintiff’s mental impairment caused no more than minimal 8 limitations in her ability to perform basic mental work activities, the ALJ concluded 9 that it was not severe. [AR 15.] In reaching this conclusion, the ALJ considered the 10 following evidence. 11 In May 2015, Plaintiff underwent a consultative psychiatric evaluation by 12 Isadore Wendel, Ph.D. [AR 15, citing AR 348-350.] Plaintiff told Dr. Wendel that 13 she suffers from depression and anxiety. Plaintiff indicated that she had no past 14 psychiatric hospitalizations or psychiatric treatment and had never seen a 15 psychiatrist. [AR 346.] 16 Dr. Wendel’s mental status examination revealed unremarkable speech, and 17 normal thought process. Plaintiff’s affect was, however, “intense, dysphoric, 18 irritated and teary” and her thought content revealed thoughts of suicide and feelings 19 of isolation. Her concentration and memory were adequate for interview purposes. 20 [AR 349.] Her mood was “depressed.” [AR 349.] Dr. Wendel diagnosed 21 “significant clinical depression” with a possible manifestation of “bipolar spectrum 22 disorder.” [AR 350.] He assessed Plaintiff with a Global Assessment of 23 Functioning score of 59.3 [AR 349.] In Dr. Wendel’s opinion, on a psychological 24

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26 3 A GAF of 51-60 indicates moderate symptoms “(e.g., flat affect and 27 circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- 28 workers).” American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental 1 basis, Plaintiff had mild restrictions in her daily activities. However, Plaintiff was 2 moderately limited in her social functioning and she had moderate difficulties in 3 concentration, persistence, and pace. [AR 350.] 4 In July 2015, State Agency medical consultant Marvin Blase, M.D., reviewed 5 the medical evidence and listed Plaintiff’s “affective disorders” as “severe.” [AR 6 95.] Dr. Blase opined that Plaintiff’s mental impairment moderately limited her 7 ability to understand, remember, and carry out detailed instructions and moderately 8 limited her ability to maintain attention/concentration for extended periods. Dr. 9 Blase also found that Plaintiff had moderate limitations in her ability to complete a 10 normal workday/workweek without interruptions from psychologically based 11 symptoms. [AR 100.] 12 In September 2015, State Agency Psychiatrist G. Ikawa, M.D., reviewed the 13 record and concurred that Plaintiff had moderate limitations in her ability to 14 maintain attention and concentration and complete a normal workday and workweek 15 without interruptions. [AR 115-116.] She also had moderate limitations in her 16 ability to interact with the general public, coworkers, and supervisors. [AR 115- 17 116.] 18 Additionally, although not addressed by the ALJ in his Step Two findings, 19 Plaintiff’s treating physician Lynn Pluche, D.O., who regularly prescribes Plaintiff’s 20 anti-depressant medication, completed an assessment form dated May 7, 2017. [AR 21 438.] Dr. Pluche opined that Plaintiff’s depression symptoms would interfere with 22 her attention and concentration about 25% of the workday. [AR 439.] 23 In making his Step Two finding, the ALJ afforded “partial” weight to the 24 portions of the State Agency psychological assessments that opined that Plaintiff 25 26 27 Disorders 34 (4th ed. text rev. 2000) (“DSM-IV-TR”). 28 1 could complete simple, routine tasks. But the ALJ found that all of the other 2 findings by the State Agency and Consultative Psychiatrists, were not entitled to any 3 weight because those opinions lacked support by the objective findings and the 4 “longitudinal medical evidence.” [AR 15.] The ALJ reasoned that Plaintiff “has not 5 received any recent treatment for her mental condition besides [depression 6 medication] refills” from her primary care physician. [AR 15.] Further, the ALJ 7 found that “there is no indication in the record that the mental impairments would 8 impose even a minimal limitation on [Plaintiff’s] functioning and capacity to work.” 9 [AR 15.] Overall, the ALJ found the absence of any mental health treatment from a 10 psychiatric professional was inconsistent with Plaintiff’s allegations that she could 11 not work due to her mental impairments. [AR 15.] 12 C. Analysis 13 Here, the ALJ’s finding that Plaintiff did not have a “severe” impairment is 14 not clearly established by the medical evidence. As a threshold matter, the ALJ’s 15 finding that “there is no indication in the record that the mental impairments would 16 impose even a minimal limitation on [Plaintiff’s] functioning and capacity to work” 17 is demonstrably false. As seen above, multiple physicians, including Plaintiff’s 18 treating physician, the consultative examiner and the State Agency physicians, 19 found that Plaintiff’s depression would cause moderate limitations in several areas 20 including her concentration, persistence and pace and her ability to complete a 21 normal work day/week. Moreover, the medical opinion evidence indicates that 22 Plaintiff’s depression causes moderate difficulties in her social functioning 23 including her ability to interact with coworkers and supervisors. [AR 116, 350.] 24 Thus, the ALJ’s discussion of Plaintiff’s condition does not fairly represent the 25 significance of her depression and the limitations and complications arising from it, 26 as reflected in the record. See Webb, 433 F.3d at 687 (“Although the medical record 27 paints an incomplete picture of Webb’s overall health during the relevant period, it 28 includes evidence of problems sufficient to pass the de minimis threshold of step 1 two.”). 2 In cherry picking the evidence in the record, the ALJ relied almost 3 exclusively on Plaintiff’s lack of mental health treatment to discredit both Dr. 4 Wendel’s findings and those of the state agency physicians in concluding that 5 Plaintiff had only a mild mental impairment. [AR at 15. But “not seek[ing] 6 treatment for a mental disorder until late in the day is not a substantial basis on 7 which to conclude that [a doctor’s] assessment of claimant’s condition is 8 inaccurate.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). It is improper 9 for an ALJ to “reject[ ] claimant’s assertions about his depression” for failing to 10 seek psychiatric treatment. Id. “‘[Claimant] may have failed to seek psychiatric 11 treatment for his mental condition, but it is a questionable practice to chastise one 12 with a mental impairment for the exercise of poor judgement in seeking 13 rehabilitation.’” Id. (citing Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 14 1989). This reason fails to support the ALJ’s characterization of Plaintiff’s mental 15 health history, and the record as a whole, which demonstrates a longitudinal history 16 of suicidal ideation and treatment with psychiatric medication. See Reddick v. 17 Chater, 157 F.3d 715, 722–23 (9th Cir. 1998) (An ALJ may not “cherry pick” from 18 a record to support the conclusion, but rather must account for the context of the 19 whole record.). Moreover, evidence of limited treatment does not negate the 20 possibility that her mental impairment is severe. 21 Ultimately, the purpose of a step-two evaluation is to dispose of “groundless 22 claims” and the evidence in the record before the ALJ was sufficient to conclude 23 that Plaintiff’s depression is a severe impairment under the de minimis test. There is 24 no dispute in the record that Plaintiff did not seek mental health treatment outside of 25 her primary care physician, who prescribed anti-depression medication. As minimal 26 or conservative as that mental health treatment may be, when Plaintiff’s symptoms 27 were assessed by four different physicians, they all agreed that Plaintiff’s mental 28 impairment caused much more than mild limitations. Therefore, the Court cannot 1 say that Plaintiff’s limited mental health treatment should be credited over glaring 2 medical evidence demonstrating that her impairments more than minimally affected 3 her ability to do basic work activities. See Ortiz v. Commissioner of Social Sec., 425 4 Fed. Appx. 653, 655 (9th Cir. 2011) (unpublished) (“This is not the total absence of 5 objective evidence of severe medical impairment that would permit us to affirm a 6 finding of no disability at step two.”). Because the evidence here established that 7 Plaintiff suffers from depression causing moderate limitations in many of her areas 8 of functioning, the ALJ erred by declining to find this ailment severe. See Webb, 9 433 F.3d at 687. 10 Finally, it cannot be said that the ALJ’s error here was harmless. See Stout v. 11 Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“We 12 recognize harmless error applies in the Social Security context.”). Because Plaintiff 13 was found to have at least one severe impairment (see AR 13), this case was not 14 resolved at Step Two. Plaintiff does not assign error to the ALJ’s finding at Step 15 Three. Thus, any error in the ALJ’s finding at Step Two is harmless, if all 16 impairments, severe and non-severe, were considered in the determination of 17 Plaintiff’s RFC. See Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding 18 that a failure to consider an impairment in step two is harmless error where the ALJ 19 includes the limitations of that impairment in the determination of the residual 20 functional capacity). The record demonstrates this was not done. [See AR 16–20.] 21 The ALJ did not consider or discuss any limitations resulting from Plaintiff’s 22 medically determinable mental impairment beyond Step Two. Rather, as part of the 23 assessment of Plaintiff’s credibility, the ALJ listed a variety of Plaintiff’s daily 24 activities including that she can take care of her personal needs, drive and go out 25 alone. While the ALJ also listed that Plaintiff “has problems getting along with 26 others,” the ALJ failed to discuss or distinguish that finding with the corroborating 27 medical opinion evidence stating that Plaintiff has moderate difficulties in social 28 functioning. Given these omissions, the Court cannot say that the ALJ adequately 1 discussed Plaintiff’s mental impairments later in the sequential evaluation. The 2 Court therefore finds that the ALJ failed to properly account for Plaintiff’s mental 3 limitations in her RFC, and any error by failing to consider her depression severe at 4 Step Two was not harmless. See, e.g., Roque v. Berryhill, No. 1:17-CV-00192- 5 SKO, 2018 WL 1919835 (E.D. Cal. Apr. 24, 2018); Inskeep v. Colvin, No. 3:15–cv– 6 00759–BR, 2016 WL 3509395, at *4 (D. Or. June 27, 2016) (concluding that the 7 ALJ erred at Step Two when he found Plaintiff’s mental impairments are nonsevere 8 and finding that error is not harmless because the ALJ did not include any mental 9 limitations in his assessment of Plaintiff’s RFC.) 10 Accordingly, for the reasons stated above, the Court finds that Plaintiff is 11 entitled to summary judgment on the claim that the ALJ erred at step two of the 12 sequential evaluation by finding that Plaintiff’s medically determinable depression 13 was non-severe. 14 V. CONCLUSION AND ORDER 15 The decision of whether to remand for further proceedings or order an 16 immediate award of benefits is within the district court’s discretion. Harman v. 17 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 18 served by further administrative proceedings, or where the record has been fully 19 developed, it is appropriate to exercise this discretion to direct an immediate award 20 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 21 turns upon the likely utility of such proceedings”). But when there are outstanding 22 issues that must be resolved before a determination of disability can be made, and it 23 is not clear from the record the ALJ would be required to find the claimant disabled 24 if all the evidence were properly evaluated, remand is appropriate. Id. 25 The Court finds that remand is appropriate because the circumstances of this 26 case suggest that further administrative review could remedy the ALJ’s errors. See 27 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 28 determination, the proper course is remand for additional agency investigation or 1 |} explanation, “except in rare circumstances’’); Treichler v. Comm’r of Soc. Sec. 2 || Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (temand for award of benefits is 3 || inappropriate where “there is conflicting evidence, and not all essential factual 4 || issues have been resolved’’); Harman, 211 F.3d at 1180-81. 5 The Court has found that, with respect to Plaintiff's depression, the ALJ erred 6 || at step two of the sequential evaluation process. On remand, the ALJ must evaluate 7 || Plaintiff’s depression as a severe impairment at step-two and include limitations 8 || imposed by Plaintiff's depression in the ALJ’s overall evaluation of Plaintiff. 9 For all of the foregoing reasons, IT IS ORDERED that: 10 (1) the decision of the Commissioner is REVERSED and this matter 11 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 12 administrative proceedings consistent with this Memorandum Opinion and 13 Order; and 14 (2) Judgment be entered in favor of Plaintiff. 15 16 IT IS SO ORDERED. 17 18 || DATED: March 25, 2020 19

GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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