Rivera v. Colvin

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I. PROCEEDINGS

         Plaintiff filed this action on September 18, 2015, seeking review of the Commissioner’s denial of his application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed before the undersigned Magistrate Judge on October 5, 2015, and June 22, 2016. Pursuant to the Court’s Order, the parties filed a Joint Stipulation on May 17, 2016, 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 May 13, 1974. [Administrative Record (“AR”) at 38, 196.] He has past relevant work experience as a forklift driver, inventory control clerk, general office clerk, and warehouse worker. [AR at 38, 77-78.]

         On May 4, 2012, plaintiff protectively filed an application for a period of disability and DIB, alleging that he has been unable to work since June 1, 2009. [AR at 26, 196.] After his application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [AR at 26, 131-32.] A hearing was held on September 24, 2013, at which time plaintiff appeared with a non-attorney representative, and testified on his own behalf. [AR at 45-88.] A vocational expert (“VE”) also testified. [AR at 75-87.] On January 10, 2014, the ALJ issued a decision concluding that plaintiff was not under a disability from June 1, 2009, the alleged onset date, through September 30, 2013, the date last insured. [AR at 26-40.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. [AR at 21.] When the Appeals Council denied plaintiff’s request for review on July 20, 2015 [AR at 2-7], 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) (citation and internal quotation marks 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.”) (citation and internal quotation marks omitted). “Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 528 F.3d at 1198 (citation and internal quotation marks 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 June 1, 2009, the alleged onset date.^[1] [AR at 28.] At step two, the ALJ concluded that plaintiff has the severe impairments of obesity; shoulder, back, and neck impairments; and depression. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [AR at 29.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)^[2] to perform light work as defined in 20 C.F.R. § 404.1567(b), ^[3] as follows:

[H]e can no to rarely climb ladders, ropes, or scaffolds; he can occasionally climb ramps and stairs; he can occasionally balance, stoop, kneel, crouch, and crawl; he can frequently reach overhead bilaterally; he is limited to no to rare exposure to unprotected heights; he can perform a full range of unskilled work that is all reasoning levels of unskilled work as indicated in the DOT [Dictionary of Occupational Titles]; he is precluded from jobs that require directing others or abstract thought or planning; and he should have superficial, and no direct interaction with the public.

         [AR at 31.] 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 forklift driver, inventory control clerk, general office clerk, and warehouse worker. [AR at 38, 76-79.] 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 “cleaner/housekeeper” (DOT No. 323.687-014), “production inspector” (DOT No. 559.687-074), and “small parts assembler” (DOT No. 706.684-022). [AR at 39, 80-83.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of June 1, 2009, through September 30, 2013, the date last insured. [AR at 39.] / /

         V. THE ALJ’S DECISION

         Plaintiff contends that the ALJ erred when she: (1) failed to either credit or validly reject the mental function assessments of the examining psychiatrist, Jaga Nath Glassman, M.D.; (2) granted little or no weight to the physical function assessments of plaintiff’s treating physicians: physiatrist Ron Brizzie, M.D., and pain management specialist Yogesh Patel, M.D.; and (3) rejected plaintiff’s subjective symptom testimony. [Joint Stipulation (“JS”) at 5.] Plaintiff also contends that the Appeals Council erred in rejecting the assessments of orthopedic surgeon Ralph Steiger, M.D. As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. MEDICAL OPINIONS

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