United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff, proceeding pro se, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act"). In her motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from February 7, 2008, the alleged disability onset date, through the date of the final administrative decision. (ECF No. 17.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (ECF No. 19.) Thereafter, the Commissioner filed a request for leave to file a surreply. (ECF No. 20.) In this request, the Commissioner states that she was served with plaintiff's reply, accompanied by "new evidence" (i.e., medical records from Kaiser Permanente, San Joaquin County Behavioral Health Services, and San Joaquin General Hospital, along with miscellaneous other documents) on or about June 21, 2013. (Id.) However, plaintiff never filed the above-mentioned reply and alleged "new evidence" with the court. Accordingly, on July 23, 2013, the court "grant[ed] plaintiff 28 days to file with the court the reply purportedly served on the Commissioner, accompanied by any new evidence.'" (ECF No. 21 at 2.) On August 7, 2013, plaintiff filed a reply brief, which did not include any of the above-mentioned "new evidence" or any other medical records. (ECF No. 22.) On September 24, 2013, plaintiff filed a "surreply" in support of her motion for summary judgment, which included what appears to be the above-mentioned "new evidence." (ECF No. 25.) On September 27, 2013, the Commissioner filed a request that the court consider and accept her filing at ECF No. 20-2 as her response to plaintiff's "surreply." (ECF No. 26.) For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.
Plaintiff was born on June 5, 1965, completed the eleventh grade, holds a cosmetology license, formerly worked as a hair stylist, retail stocker, film developer, and bus driver, and co-owned a restaurant with her ex-husband where she performed a number of jobs related to the management and operation of the restaurant. (Adminsitrative Transcript ("AT") 51-56, 157-58, 165, 178.) On July 25, 2008, plaintiff applied for DIB and SSI, alleging that she was unable to work as of February 7, 2008, primarily due to pain in her back, legs, feet, arms and hands, and depression and Post Traumatic Stress Disorder ("PTSD"). (AT 157-71, 182.) On October 1, 2008, the Commissioner determined that plaintiff was not disabled. (AT 99.) Upon plaintiff's request for reconsideration, the determination was affirmed on March 20, 2009. (AT 105-06.) Thereafter, plaintiff requested a hearing before an administrative law judge ("ALJ"), which took place on February 8, 2010, and at which plaintiff (represented by counsel) and a vocational expert ("VE") testified. (AT 21, 47-91, 121-23.)
In a decision dated June 25, 2010, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from February 7, 2008, plaintiff's alleged disability onset date, through the date of the ALJ's decision. (AT 21-29.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on June 7, 2012. (AT 1.) Thereafter, plaintiff filed this action in federal district court on July 24, 2012, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)
II. ISSUES PRESENTED
Based on a liberal construction of plaintiff's motion for summary judgment, the undersigned finds that plaintiff asserts the following issues: (1) whether the ALJ erred at step three in determining that plaintiff's impairments did not meet or equal a disability listing under 20 C.F.R., Pt. 404, Subpt. P, App. 1; (2) whether the ALJ erred in assessing plaintiff's residual functional capacity ("RFC"); (3) whether the ALJ made an improper credibility determination with respect to plaintiff's testimony; and (4) whether plaintiff's submission of additional medical evidence warrants remand.
III. LEGAL STANDARD
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005)). "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) (citation omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008).
A. Summary of the ALJ's Findings
The ALJ evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework. At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since February 7, 2008, the alleged onset date. (AT 23.) At step two, the ALJ determined that plaintiff had the following severe impairments: "degenerative disc disease of the cervical spine; degenerative disc disease of the lumbar spine; depressive disorder; and post-traumatic stress disorder." (Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 24.)
Before proceeding to step four, the ALJ assessed plaintiff's RFC as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the following residual functional capacity: the claimant can lift and carry up to 10 pounds occasionally and up to five pounds frequently; can stand and/or walk for two hours out of an eight-hour workday; and can sit for six hours out of an eight-hour workday. The claimant can push and/or pull up to 10 pounds frequently and up to five pounds occasionally. The claimant has no impairment of vision or speech. The claimant is moderately limited in her ability to reach. The claimant can perform manipulate [sic] her hands without limitation. The claimant has no environmental limitation. The claimant is slightly limited in her ability to maintain attention and concentration. The claimant is slightly limited in her ability to understand and remember. The claimant is unlimited in her ability to tolerate contact with the public. The claimant can tolerate occasional supervision. The claimant's residual functional capacity is consistent with a narrowed range of sedentary exertion.
At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (AT 27.) Finally, at step five, the ALJ determined, in reliance on the VE's testimony, that considering plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (AT 28.) Specifically, the ALJ found that plaintiff would be able to perform the following representative occupations: (1) information clerk, a sedentary work occupation with a specific vocational preparation ("SVP") of 2, and with 11, 000 jobs in California; (2) office clerk, sedentary work occupation with a SVP of 2, and with 19, 000 jobs in California; and (3) assembler, sedentary work occupation with a SVP of 2, and with 4, 000 jobs in California. (AT 28-29.)
Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from February 7, 2008, plaintiff's alleged disability onset date, through the date of the ALJ's June 25, 2010 decision. (AT 29.)
B. Plaintiff's Substantive Challenges to the Commissioner's Determinations
1. Whether the ALJ Erred at Step Three in Determining That Plaintiff's Impairments Did Not Meet or Equal a Disability Listing
At step three, the ALJ determines whether "a claimant's impairment meets or equals an impairment listed in [20 C.F.R. part 404, subpart P, appendix 1]." Tackett v. Apfel , 180 F.3d 1094, 1099 (9th Cir. 1999). The Listing of Impairments describes specific impairments of each of the major body systems "which are considered severe enough to prevent a person from doing any gainful activity." Id . (citing 20 C.F.R. § 404.1525). If a claimant meets or equals a listed impairment he or she will be found disabled at this step without further inquiry. Tackett , 180 F.3d at 1099 (citing 20 C.F.R. § 404.1520(d)).
A claimant bears the burden of proving that his or her impairments satisfy all the criteria of a particular listing. Tackett , 180 F.3d at 1099 ("[Claimant] had to establish that he [or she] met or equaled each of the following characteristics of a listing."). "For a claimant to show that his [or her] impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley , 493 U.S. 521, 530 (1990) (emphasis in original).
In the present case, the ALJ concluded at step three that plaintiff "does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (AT 24.) In coming to this conclusion, the ALJ stated that he had "considered all sections of the Listing of Impairments, including, in particular, those sections pertaining to musculoskeletal impairments and mental impairments." (Id.) Plaintiff argues that the ALJ erred in his conclusion that plaintiff's impairments do not meet a listing. When plaintiff's motion for summary judgment is construed liberally, it would appear that plaintiff argues in particular that the ALJ should have determined that her PTSD, Depression, and ...