Hurych v. Colvin

Decision Date25 August 2015
Docket NumberNo. 2:14-cv-2436-WBS-CKD,2:14-cv-2436-WBS-CKD
CourtU.S. District Court — Eastern District of California
PartiesDORIE L. HURYCH, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") finding plaintiff was not disabled for purposes of receiving Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will recommend that plaintiff's motion for summary judgment be denied and that the Commissioner's cross-motion for summary judgment be granted.


Plaintiff, born April 27, 1959, applied on April 28, 2010 for DIB, alleging disability beginning November 1, 2007. Administrative Transcript ("AT") 35, 182-88. Plaintiff alleged she was unable to work due to severe chronic dry eyes, eye pressure, chronic headaches, depression,anxiety, and acute stress and depression with migraines. AT 208. In a decision dated March 6, 2013, the ALJ determined that plaintiff was not disabled.1 AT 13-25. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since November 1, 2007, the original alleged onset date.
3. The claimant had the following severe impairments: bilateral floppy eyelid syndrome, left eye dermatitis or dry eye, keratitis, an anxiety-related disorder, an affective disorder, and migraine headaches.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: The claimant retains the abilities to engage in a [sic] occupation with a specific vocational preparation (SVP) code of four or less (unskilled to semi-skilled), but not skilled work. She should never climb ropes or ladders. She requires accommodation for near and far acuity.
6. The claimant is capable of performing past relevant work as a grocery clerk. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity.
7. The claimant has not been under disability, as defined in the Social Security Act, from November 1, 2007, through the date of this decision.

AT 15-25.


Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) failed to include inflammatory conjunctivitis, superior limbic keratoconjunctivitis, and mucus fishing syndrome as "severe" impairments at step two; (2) failed to fully develop the record; (3) improperly found that plaintiff's impairments did not meet or equal Listings 2.0 and 2.04; (4) improperly considered the medical opinions of Dr. Chahal and Dr. Sierra when determining plaintiff's residual functional capacity ("RFC"); (5) failed to provide clear and convincing reasons for finding plaintiff's testimony less than fully credible; (6) improperly considered the lay witness statements; and (7) failed to consider all of plaintiff's limitations when determining whether she could perform past relevant work at step four.


When previously granted benefits are terminated by the Commissioner, the burden of proof ordinarily shifts. Rather than resting on a current recipient of disability benefits to prove that he or she is disabled, the burden rests on the Commissioner to prove that the applicant is no longer disabled. "Once a claimant has been found to be disabled, . . . a presumption of continuingdisability arises in [his] favor [, and the Commissioner] bears the burden of producing evidence sufficient to rebut this presumption of continuing disability." Bellamy v. Secretary of Health & Human Serv., 755 F. 2d 1380, 1381 (9th Cir. 1985); see also Saltzman v. Apfel, 125 F. Supp. 2d 1014 (C.D. Cal. 2000) (same). This evidence then is reviewed under the substantial evidence standard. Saltzman, 125 F. Supp. 2d at 1019 (citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983)).

Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

A. The ALJ did not Err in Considering Plaintiff's Impairments at Step Two

First, plaintiff asserts that the ALJ erred at step two of the analysis by not finding that inflammatory conjunctivitis, superior limbic keratoconjunctivitis, and mucus fishing syndrome were "severe" impairments.

An impairment is "not severe" only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience werespecifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see also Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001). Impairments must be considered in combination in assessing severity. 20 C.F.R. § 404.1523.

Here, although the burden is on plaintiff at step two of the sequential evaluation, see Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), plaintiff has offered no meaningful argument in support of the claim that the ALJ erred by failing to find that inflammatory conjunctivitis, superior limbic keratoconjunctivitis, and mucus fishing syndrome were "severe" impairments. Indeed, plaintiff merely lists these impairments in her brief and asserts that the ALJ erred by not identifying them as "severe" impairments at step two. See ECF No. 16 at 6-7. Plaintiff's bald assertion is insufficient to meet her burden at step two because plaintiff provides no support from the medical record indicating that these alleged impairments caused more than a minimal impact on plaintiff's ability to work.

Moreover, even assuming for the sake of argument that the ALJ technically erred by not finding the impairments plaintiff's alleges above to be severe for purposes of step two, such error was harmless if the ALJ proceeded to consider the effects of that impairment at subsequent steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Because the ALJ found other impairments to be severe at step two, he proceeded to subsequent steps of the sequential disability evaluation process. Furthermore, the ALJ considered the impact of all of plaintiff's medically-determinable impairments, regardless of their severity, when determining plaintiff's RFC. See AT 16 ("All impairments regardless of severity have been considered in the claimant's residual functional capacity."), 18 (stating that the ALJ's RFC determination was based on "careful consideration of the entire record"). Therefore, any error the ALJ could have committed at step two by not finding the above additional impairments severe would have been, at most, harmless.

B. The ALJ Fulfilled Her Duty to Fully Develop the Record

Second, plaintiff argues that the ALJ failed to fully develop the record by not obtaining the testimony of a "medical expert to decipher the medical evidence so that the ALJ could have an adequate understanding on how plaintiff's medical impairments limited the [sic] her ability to work." ECF No. 16 at 7. Plaintiff asserts that a medical expert was required in this case to "both identify the medically determinable impairments that are supported by 'substantial evidence' then to translate the impact of these medically determinable impairments on the plaintiff's ability to work." Id. (emphasis in original).

Disability hearings are not adversarial. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991); see also Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (ALJ has duty to develop the record even when claimant is represented). Evidence raising an issue requiring the ALJ to investigate further depends on the case. Generally, there must be some objective evidence suggesting a condition that could have a material impact on the disability decision. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of Health and Human Services, 939 F.2d 680, 682 (9th Cir. 1991). "Ambiguous evidence . . . triggers the ALJ's duty to 'conduct an appropriate...

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