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Delong v. Colvin

United States District Court, C.D. California, Western Division

February 2, 2015

JAMES VINCENT DELONG, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION AND ORDER

PAUL L. ABRAMS, Magistrate Judge.

I.

PROCEEDINGS

Plaintiff filed this action on May 8, 2014, seeking review of the Commissioner's denial of his application for Disability Insurance Benefits. The parties filed Consents to proceed before the undersigned Magistrate Judge on May 16, 2014, and May 29, 2014. Pursuant to the Court's Order, the parties filed a Joint Stipulation on December 29, 2014, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II.

BACKGROUND

Plaintiff was born on August 10, 1958. [Administrative Record ("AR") at 17, 161.] He has past relevant work experience as a truck driver and as a stone cutter. [AR at 17, 62.]

On November 3, 2010, plaintiff filed an application for a period of disability and disability insurance benefits ("DIB"), alleging that he has been unable to work since April 1, 2010.[1] [AR at 11, 161-63.] After his application was denied initially, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 95-96.] A hearing was held on December 11, 2012, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [AR at 48-76.] A vocational expert ("VE") also testified. [AR at 62-75.] On January 7, 2013, the ALJ issued a decision concluding that plaintiff was not under a disability from April 1, 2010, through December 31, 2010, the date last insured ("DLI"). [AR at 11-19.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 7.] When the Appeals Council denied plaintiff's request for review on April 8, 2014 [AR at 1-5], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue , 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.

III.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue , 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

"Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1159 (9th Cir. 2008) (internal quotation marks and citation omitted); Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari , 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec. , 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (internal quotation marks and citation omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan , 528 F.3d at 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).

IV.

THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan , 966 F.2d 1255, 1257 (9th Cir. 1992).

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater , 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id . If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id . If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id . If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform his past work; if so, the claimant is not disabled and the claim is denied. Id . The claimant has the burden of proving that he is unable to perform past relevant work. Drouin , 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. Id . The Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. Id . The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester , 81 F.3d at 828 n.5; Drouin , 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since April 1, 2010, the alleged onset date, through his DLI of December 31, 2010.[2] [AR at 13.] At step two, the ALJ concluded that plaintiff has the following severe impairments: multi-level degenerative disc disease, cervical spine stenosis and neural foraminal narrowing; chronic obstructive pulmonary disease; and history surgical repair bilateral shoulders. [AR at 13-14 (citation omitted).] The ALJ found that plaintiff's medically determinable impairments of generalized anxiety disorder and polysubstance abuse, considered singly and in combination, "did not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and were therefore nonsevere." [AR at 14.] At step three, the ALJ determined that through the DLI, plaintiff did not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listings. [Id. at 15.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")[3] to perform light work as defined in 20 C.F.R. § 404.1567(b), [4] except:

[Can] lift/carry 10 pounds frequently, 20 pounds occasionally with right upper extremity, but only 10 pounds with left upper extremity; requires cane for long distance walking; sit at least 6 hours of an 8 hour day; stand/walk at least 6 hours of an 8 hour day; occasionally climb, balance, stoop, kneel, crouch, crawl; no climbing ladders; no concentrated exposure to dust, fumes, respiratory irritants; occasional overhead reaching bilaterally.

[Id.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that plaintiff is unable to perform any of his past relevant work as a truck driver or as a stone cutter. [AR at 17.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as a "cashier" (Dictionary of Occupational Titles ("DOT") No. 211.462-010), and "usher/lobby attendant" (DOT No. 344.677-004). [AR at 18, 64.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of April 1, 2010, through December 31, 2010, plaintiff's DLI. [AR at 18.]

V.

THE ALJ'S DECISION

Plaintiff contends that the ALJ erred when she: (1) evaluated the medical evidence concerning plaintiff's cervical spine impairment; (2) found plaintiff's testimony regarding his subjective symptoms and functional limitations prior to his DLI was not credible; (3) failed to provide germane reasons for rejecting the statement of a lay witness; and (4) assessed plaintiff's physical RFC prior to the DLI. [Joint Stipulation ...


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