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Agosta v. Colvin

United States District Court, Ninth Circuit

December 11, 2013

MICHELE D. AGOSTA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

JOHN E. McDERMOTT, Magistrate Judge.

PROCEEDINGS

On April 11, 2011, Michele D. Agosta ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for Social Security Disability Insurance benefits and Supplemental Security Income benefits. The Commissioner filed an Answer on June 3, 2013. On October 16, 2013, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision must be affirmed and this case dismissed with prejudice.

BACKGROUND

Plaintiff is a 48-year-old female who applied for Social Security Disability Insurance benefits on April 26, 2007 and Supplemental Security Income benefits on May 31, 2007. (AR 161.) The ALJ determined that Plaintiff has not engaged in substantial gainful activity since October 6, 2004, the alleged onset date of her disability. (AR 26, 163.)

Plaintiff's claims were denied initially on March 28, 2008. (AR 161.) Plaintiff then sought review and on September 14, 2009, the matter proceeded to a hearing before Administrative Law Judge ("ALJ") Joel B. Martinez in Pasadena, California. (AR 161.) Claimant appeared and testified at the hearing and was represented by counsel. (AR 161.) Vocational expert ("VE") Gail L. Maron also appeared and testified at the hearing. (AR 161.)

The ALJ issued an unfavorable decision on November 4, 2009. (AR 161-170.) The Appeals Council denied review on January 7, 2011. (AR 171-173.)

Plaintiff then appealed the Commissioner's decision to this Court, which, on May 10, 2011, remanded the decision pursuant to the parties' stipulation to remand under sentence six of the Social Security Act. (AR 174-81.) On remand, the Court instructed the Commissioner to consider additional medical evidence that Plaintiff had timely submitted but that the Appeals Council did not consider prior to its declining her request to review the ALJ's November 4, 2009 decision. (AR 176-77.) In accordance with this Court's Order dated May 17, 2011 (AR 174-75), the Appeals Council vacated the decision and remanded the case to the Commissioner of Social Security for further proceedings consistent with the terms of the Stipulation to Remand.

A new hearing was held on March 6, 2012, before ALJ Mason D. Harrell, Jr., in San Bernardino, California. (AR 23.) Claimant appeared and testified at the hearing and was represented by counsel. (AR 23.) Vocational expert ("VE") Sandra M. Fioretti, also appeared and testified at the hearing. (AR 23.)

The ALJ issued an unfavorable decision on April 24, 2012. (AR 23-38.) The Appeals Council denied review on February 2, 2013. (AR 1-3.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:

1. Whether the ALJ erred in rejecting the functional capacity assessments of the treating physicians at Irwindale Industrial Clinic and treating general practitioner Davis, as well as partially rejecting the opinions of treating orthopedist Miller, treating psychiatrist Hutton, and consulting psychiatrist Kikani.
2. Whether the finding that Ms. Agosta's subjective testimony is not credible is supported by substantial evidence.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error. Smolen v. Chater , 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan , 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

Substantial evidence means "more than a mere scintilla, ' but less than a preponderance." Saelee v. Chater , 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson , 402 U.S. at 401 (internal quotation marks and citation omitted).

This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r of the Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.'" Robbins , 466 F.3d at 882 (quoting Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007).

THE SEQUENTIAL EVALUATION

The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or... can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.

The first step is to determine whether the claimant is presently engaging in substantial gainful activity. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert , 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or combination of impairments. Parra , 481 F.3d at 746. An impairment is not severe if it does not significantly limit the claimant's ability to work. Smolen , 80 F.3d at 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra , 481 F.3d at 746. If the impairment meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen , 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past relevant work. Pinto v. Massanari , 249 F.3d 840, 844-45 (9th Cir. 2001).

Before making the step four determination, the ALJ first must determine the claimant's residual functional capacity ("RFC"). 20 C.F.R. § 416.920(e). Residual functional capacity ("RFC") is "the most [one] can still do despite [his or her] limitations" and represents an assessment "based on all the relevant evidence." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant's impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ("SSR") 96-8p.

If the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel , 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the general rule that at all times the burden is on the claimant to establish his or her entitlement to benefits. Parra , 481 F.3d at 746. Once this prima facie case is established by the claimant, the burden shifts to the Commissioner to show that the claimant may perform other gainful activity. Lounsburry v. Barnhart , 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not disabled at step five, the Commissioner must provide evidence demonstrating that other work exists in significant numbers in the ...


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