Sharp v. Commissioner of Social Security Administration

          ORDER

          Dominic W. Lanza, United Slates District Judge

         INTRODUCTION

         Plaintiff Brian S. Sharp (“Sharp”) seeks review under 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security (“Commissioner”), which denied his application for disability benefits. For the following reasons, the Court finds that the administrative law judge's (“ALJ”) decision was based on reversible legal error and remands for further proceedings.

         Sharp is a 53-year-old man who previously worked as a repairer and construction worker and alleges he became disabled in February 2013.^[1] In April 2013, Sharp filed an application for disability benefits. (A.R. 137-38.) The claim was denied on August 7, 2013 (A.R. 80-83), and again upon reconsideration on December 13, 2013 (A.R. 89-91). Sharp then filed a written request for a hearing on January 24, 2014. (A.R. 92-93.) On June 23, 2015, Sharp appeared and testified at a video hearing at which an impartial vocational expert also appeared and testified by telephone. (A.R. 43-62.) On September 8, 2015, the ALJ issued a decision that Sharp was not disabled within the meaning of the Social Security Act. (A.R. 26-38.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Sharp's request for review on March 17, 2017. (A.R. 8-14.)

         LEGAL STANDARD

         The Court addresses only the issues raised by the claimant in the appeal from the ALJ's decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001). The Court should uphold the ALJ's decision “unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court should uphold the ALJ's decision “[w]here evidence is susceptible to more than one rational interpretation, ” but the Court “must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations and internal quotation marks omitted).

         “[H]armless error principles apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.” Id. (citations and internal quotation marks omitted). The Court must “look at the record as a whole to determine whether the error alters the outcome of the case.” Id. Importantly, however, the Court may not uphold an ALJ's decision on a ground not actually relied on by the ALJ. Id. at 1121.

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

         BACKGROUND

         At step one, the ALJ found Sharp met the insured status requirements of the Social Security Act through March 31, 2016 and had not engaged in substantial gainful activity since January 1, 2011, the alleged onset date.^[2] (A.R. 31.) At step two, the ALJ found that Sharp had the following severe impairments: diabetes and degenerative disc disease (DDD) of the back. (A.R. 31.) The ALJ also found that Sharp had the following non-severe impairments: coronary artery disease and obesity. (A.R. 31-32.) At step three, the ALJ determined that Sharp did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (A.R. 32.) At step four, the ALJ found that Sharp had the residual functional capacity to perform medium work with the following limitations: limited to occasional exposure to heights, moving machinery, and temperature extremes. (A.R. 32-36.) The ALJ further found that Sharp was unable to perform any past relevant work. (A.R. 36.) At step five, the ALJ found that, considering Sharp's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Sharp can perform, including hand packager, order filler, and dishwasher/janitor. (A.R. 37-38.)

         Sharp argues that the ALJ's decision is defective for three reasons: (1) the ALJ erred at step two in failing to consider Sharp's attacks of cardiac arrhythmia; (2) the ALJ erred at step four in rejecting Sharp's symptom testimony; and (3) the ALJ erred at step four in determining Sharp's RFC without reference to nonexertional limitations from Sharp's cardiac arrhythmia. (Doc. 13.)

         As explained below, the Court agrees the ALJ committed reversible error during step four.

I. Whether the ALJ Erred at Step Two in Failing to Consider Sharp's Attacks of Cardiac Arrhythmia

         Sharp argues that the ALJ erred in failing to consider his attacks of cardiac arrythmia at step two. (Doc. 13 at 1, 11.)

         At step two, the ALJ considers whether the claimant has a “severe” impairment, 20 C.F.R. § 404.1520(a)(4)(ii), defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, ” id. § 404.1520(c). “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a ...