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Berschneider v. Colvin

United States District Court, E.D. California

March 31, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security Defendant.


GARY S. AUSTIN, Magistrate Judge.


Rocklin Berschneider ("Plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner" or "Defendant") denying Mr. Berschneider's application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.[1]


Plaintiff was born on August 7, 1970. AR 126. He graduated from high school and received a degree in culinary arts in 1995. AR 138. Plaintiff worked as a cook at a restaurant from 1994 until 2000, when he began working as a security guard at a winery. AR 138. He held that job until 2008, when he was reassigned to work as a telephone operator because he was experiencing weakness in his hands and was no longer able to pull the trigger on his handgun. AR 208, 214. He held that job until April 2010, when his employment was terminated.[3] AR 138. Plaintiff lives with his wife and adopted minor son. AR 214. More recently, the family moved in with Plaintiff's mother-in-law following the foreclosure of their house. AR 209.

Plaintiff's alleged physical conditions include obesity and myotonic dystrophy.[4] AR 137. Plaintiff's symptoms include general weakness in his extremities, including his arms, fingers, and legs, as well as pain and numbness in his leg. AR 45-46. Plaintiff also alleges gastrointestinal difficulties. AR 269. There is no treatment for myotonic dystrophy. AR 216.

On August 27, 2010, Plaintiff filed an application for disability insurance benefits under Title II. AR 124-25. The application was denied initially on February 4, 2011 and on reconsideration on May 4, 2011. AR 67-71, 75-79. Plaintiff filed a request for a hearing on June 23, 2011. AR 88-89. The hearing was then conducted before Administrative Law Judge Daniel G. Heely (the "ALJ") on January 24, 2012. AR 41. On August 10, 2012, the ALJ issued an unfavorable decision determining that Plaintiff was not disabled. AR 18-29. Plaintiff filed an appeal of this decision with the Appeals Council. The Appeals Council denied the appeal, rendering the order the final decision of the Commissioner. AR 1-7.

Plaintiff now challenges that decision. Specifically, he objects to the ALJ's findings that: (1) myotonic dystrophy and obesity were the only two severe medical impairments at step two of the five-step evaluative process; (2) Plaintiff was not credible when discussing the severity of his impairments; (3) the third party statements about Plaintiff's impairments were not credible; and (4) the opinions of Plaintiff's two treating physicians were entitled to little weight.


To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

... his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).

To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. § 404.1520(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must consider objective medical evidence and opinion testimony. 20 C.F.R. § 404.1527, 404.1529.

Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability; (2) whether the claimant had medically-determinable "severe" impairments;[5] (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant retained the residual functional capacity ("RFC") to perform his past relevant work;[6] and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the regional and national level. 20 C.F.R. § 404.1520(a)-(f).

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 18-29. In particular, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 5, 2010, the date specified in his application. AR 23. Further, the ALJ identified obesity and myotonic dystrophy as medically determinable impairments. AR 23. Nonetheless, the ALJ determined that the severity of Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 23.

Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to perform "light work as defined in 20 C.F.R. § 404.1567(b) as follows: could work at jobs sitting/standing/walking 6 out of 8 hours each with normal breaks, lifting and carrying 50 pounds occasionally and 25 pounds frequently; could engage in frequent but not constant handling and fingering with the bilateral upper extremities." AR 24. Although Plaintiff could not perform his past relevant work, he could perform other work that exists in national economy. AR 20.


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

"Substantial evidence means more than a scintilla but less than a preponderance." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id. "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id.


A. The Impact of Plaintiff's Medically Determinable Impairments

Plaintiff argues that the ALJ failed to consider the "severity and impact" of several of Plaintiff's medical impairments at step two of his analysis. Plaintiff's Opening Brief ("Opening Brief") 20:16-19, ECF No. 15. Although the ALJ ultimately determined that the Plaintiff's obesity and myotonic dystrophy were both severe impairments under 20 C.F.R. § 404.1520(c), Plaintiff argues that he should also have included the Plaintiff's "pulmonary insufficiency, sleep disorder, peripheral neuropathy, gall stones, and other impairments associated with Myotonic Dystrophy." Id. Plaintiff further argues that this failure was prejudicial to Plaintiff because it ultimately discounted several of Plaintiff's complaints.

The Commissioner responds that any such failure constituted harmless error and thus does not ...

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