Miller v. Commissioner of Social Security Administration

          ORDER

          Bernardo P. Velasco, United States Magistrate Judge.

         Plaintiff Cynthia Miller filed the instant action seeking review of the final decision of the Commissioner of Social Security. (Doc. 1.) The Magistrate Judge has jurisdiction over this case pursuant to the parties' consent under 28 U.S.C. § 636(c). (Doc. 16.) The matter is now fully briefed before this Court. (Docs. 17-19.) For the following reasons, the Court reverses the Commissioner's decision and remands for consideration in accordance with this Order.

         I. Procedural History

         On May 21, 2013, Plaintiff filed an application for disability and disability insurance benefits (Administrative Record (“AR”) 234-40), and on May 21, 2013 she filed a Title XVI Application for Supplemental Security Income (AR 241-49). Plaintiff alleged disability as of January 1, 2012. (AR 272.) Plaintiff claimed disability due to Bipolar Disorder, depression, anxiety, auditory hallucinations, degenerative disc disease, COPD, gout, obesity, carpal tunnel syndrome, and hernias. (AR 277.) Plaintiff's application was initially denied on September 25, 2013 (AR 68-84, 154-57), and upon reconsideration on March 26, 2014. (AR 104-124). On September 2, 2015, Plaintiff appeared before an Administrative Law Judge (“ALJ”). (AR 4.) The ALJ issued an unfavorable decision on November 13, 2015. (AR 4-17.)^[1] Following Plaintiff's Request for Review (AR 230-33), the Appeals Counsel denied Plaintiff's request on August 17, 2017 (AR 24), making the ALJ's decision the Commissioner's final decision for the purposes of review.

         Plaintiff filed the instant action on October 16, 2017, arguing that: (1) the ALJ failed to give clear and convincing reasons for discrediting Plaintiff; (2) the ALJ did not properly account for the limiting effects of Bipolar Disorder; (3) the ALJ gave inappropriate weight to the opinions of examining physicians Dr. Brenda Sparrold and Dr. Machelle Martinez; and (4) the residual functioning capacity was not supported by substantial evidence. (Doc. 17 at 2.) Because the Court finds that the ALJ erred on the first two grounds, and this error was not harmless, the Court does not address Plaintiff's other arguments.

         II. Plaintiff's Background, Statements and Vocational Expert's Findings

         a. Plaintiff's Testimony

         Plaintiff was thirty-three years old on the date of the alleged onset of disability. (AR 278.) She completed high school and some college classes. (AR 278.) Plaintiff's past work included working at a call center and as a hemodialysis technician. (AR 15.) In the Administrative Hearing, Plaintiff claimed she suffered from daily anxiety and depression. (AR 49-50.) The anxiety caused physical impairments including sweating, dizziness, asthma, and loss of vision. (AR 50.) Plaintiff controlled her anxiety attacks with medication, but the medication took approximately 20-30 minutes before offering any relief. (AR 50.)

         Plaintiff also testified that she experienced audio hallucinations a few times a week and visual hallucinations a few times a month. (AR 50.) Plaintiff described her hallucinations, claiming she heard children laughing and a man telling her “I've already failed at life, . . . nobody loves me . . . I don't have anything together, I'm not well. . . I can't do anything right and I just may as well give up because there's just nothing ahead for me.” (AR 51.)

         Plaintiff claimed the hallucinations interfered with her ability work in previous jobs, causing her to be fired after a short time. (AR 51.) She indicated several short-term jobs for which she was unable to maintain prolonged employment. (See e.g., AR 42 (fired from Life Sonora Homes near Christmas 2012); AR 41 (in 2012, worked at Go Wireless “for a very short time”); AR 44-45 (in 2011, fired from A'Garo Administrative Service after six months); AR 45 (in 2010, fired from Corey G. Hicks & Associates after short term); AR 45 (in 2009, fired from Afni after 9-10 months); AR 46-47 (in 2003, worked as a hemodialysis technician for approximately six months); AR 1184 (record shows “approximately 8 terminations for failure to attend work”).) For example, Plaintiff claimed that in her customer service job at Afni in 2009, her anxiety was so severe that her supervisor needed to stay with her in her car before work, calm her down, and coax her to come inside. (AR 46.) Once this supervisor left, Plaintiff was no longer capable of showing up for work and lost her job. (AR 46.)

         Plaintiff explained that she supported herself though food stamps and occasional blood donations. (AR 43.) In addition, her housing and utilities were provided by COPE Community Services. (AR 43.) When asked about other financial support, Plaintiff described a three to four-week trip to Canada completely paid for by a male friend. (AR 43-44.) She claimed she got engaged to this man while there, but since she did not really know him, she had since called the engagement off. (AR 44.)

         Plaintiff testified that even if she had simple, assembly line-type employment, she could not do it because of her ongoing pain and mental impairments. (AR 51-54.) She claimed the stress of even a simple job would cause her to constantly feel like she would be fired, which in turn would aggravate her anxiety, and eventually lead to her actually being fired. (AR 51-54.)

         b. Vocational Expert Testimony

         The ALJ asked the Vocational Expert (“VE”) whether a hypothetical person could participate in Plaintiff's prior work if this person could work 6 hours a day, carry up to 20 pounds, climb, and had “no manipulative, visual, or communicative limitations, ” but would need to avoid “fumes, odors, dusts, gases, poor ventilation, and . . . hazardous machinery or unprotected heights.” (AR 61.) The ALJ further indicated that such a person would be capable of understanding simple instructions and procedures, and could perform sustained, simple work. Id. However, this person may “perform best in settings with limited social interactions and that is with not only the general public, but also with supervisors and with coworkers or peers.” (AR 61-62.)

         The VE responded that such person could not perform Plaintiff's prior work, but could work as a courier messenger or janitor. (AR 62-63.)

         Plaintiff's attorney then asked the VE if such person would be employable if the person also had daily panic attacks for 20 minutes at a time, needed assistance to coax her into the workplace, and was off task approximately 15 percent of the day. (AR 63-64.) The VE responded that such a person would not be able participate in sustained work. (AR 64.)

         III. Summary of ALJ's Findings

         Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§ 404.1520, 416.920. To establish disability, the claimant must show: (1) she has not performed substantial gainful activity since the alleged disability onset date (“step one”); (2) she has a severe impairment(s) (“step two”); and (3) her impairment(s) meets or equals the listed impairment(s) (“step three”). Id. “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed[, ] . . . the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC).” Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2015). Then, “[a]fter developing the RFC, the ALJ must determine whether the claimant can perform past relevant work.” Id. Then, at stage five, “the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Id.; 20 C.F.R. §§ 404.1520, 416.920.

         In this case, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2012. (AR 6.)

         At step two, the ALJ determined that Plaintiff had severe impairments, including morbid obesity, Bipolar Disorder with psychotic features, Post-Traumatic Stress Disorder, and panic disorder without agoraphobia. (AR 6.)

         But the ALJ decided, at step three, that the Plaintiff's impairments did not meet or equal the listed impairments either singularly or in combination. (AR 7.) Specifically, the ALJ determined that Plaintiff had not demonstrated her mental impairments met the criteria for Listing 12.04 (Affective Disorders including Bipolar) or 12.06 (Anxiety Related Disorders). (AR 7.) The ALJ concluded that Plaintiff exhibited no marked restrictions in function and no periods of decomposition, both of which are necessary for a disability determination under paragraph B of the Listings for mental impairments. (AR 7-8.)

         At step four, the ALJ stated that given the limiting effects of her ailments, Plaintiff's RFC included light work; standing, walking, or sitting for 6 hours a day with normal breaks; occasional crawling and climbing; and frequent balancing, stooping, kneeling, and crouching. (AR 9-10.) The RFC eliminated exposure to areas without proper ventilation, hazardous machinery, and unprotected heights. Id. Furthermore, the ALJ found that Plaintiff could follow simple instructions in the workplace and work on a sustained basis. (AR 10.) Finally, the ALJ determined that Plaintiff would require limited social interaction with the public, supervisors, co-workers, and peers. Id. Based on this assessment, the ALJ concluded that Plaintiff could not perform past relevant work. (AR 15.)

         However, at step five, given Plaintiff's RFC, age, education, and work experience, the ALJ found that Plaintiff was not disabled and could work as a courier messenger or janitor. (AR 17.)

         IV. ...