Draper v. Colvin

          DECISION AND ORDER

          VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         In May of 2012, Plaintiff Gayle Y. Draper applied for Supplemental Security Income (“SSI”) benefits and Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the applications.

         Plaintiff, by and through her attorneys, Law Offices of Martin Taller, APC, Troy D. Monge, Esq., of counsel, commenced this action seeking judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

         The parties consented to the jurisdiction of a United States Magistrate Judge. (Docket No. 7, 11, 21, 22). On May 31, 2016, this case was referred to the undersigned pursuant to General Order 05-07. (Docket No. 20).

         II. BACKGROUND

         Plaintiff applied for SSI benefits and Disability Insurance Benefits on May 14, 2012, alleging disability beginning September 17, 2008, due to various impairments. (T at 138-44, 145-53, 154-57).^[1] The applications were denied initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

         On February 13, 2014, a hearing was held before ALJ Sharilyn Hopson. (T at 34). Plaintiff appeared with her attorney and testified. (T at 37-48). The ALJ also received testimony from Alan Boroskin, a vocational expert (T at 49-54).

         On March 3, 2014, the ALJ issued a written decision denying the applications for benefits. (T at 16-31). The ALJ’s decision became the Commissioner’s final decision on August 17, 2015, when the Appeals Council denied Plaintiff’s request for review. (T at 1-7).

         On September 14, 2015, Plaintiff, acting by and through her counsel, filed this action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 1). The Commissioner interposed an Answer on March 17, 2016. (Docket No. 15). The parties filed a Joint Stipulation on May 23, 2016. (Docket No. 19).

         After reviewing the pleadings, Joint Stipulation, and administrative record, this Court finds that the Commissioner’s decision must be reversed and this case be remanded for further proceedings.

         III. DISCUSSION

         A. Sequential Evaluation Process

         The Social Security Act (“the 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 which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if any impairments are of such severity that he or she is not only unable to do previous work but cannot, considering his or her age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9^th Cir. 2001).

         The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

         If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant’s impairment(s) with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work which was performed in the past. If the claimant is able to perform previous work, he or she is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual functional capacity (RFC) is considered. If the claimant cannot perform past relevant work, the fifth and final step in the process determines whether he or she is able to perform other work in the national economy in view of his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

         The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9^thCir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9^th Cir. 1999). The initial burden is met once the claimant establishes that a mental or physical impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a “significant number of jobs exist in the national economy” that the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9^th Cir. 1984).

         B. Standard of Review

         Congress has provided a limited scope of judicial review of a Commissioner’s decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9^th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9^th Cir. 1999).

         “The [Commissioner’s] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9^th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9^th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9^th Cir. 1989). Substantial evidence “means such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9^th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9^th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9^th Cir. 1980)).

         It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9^thCir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9^th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9^th Cir. 1987).

         C. Commissioner’s Decision

         The ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 17, 2008, the alleged onset date, and met the insured status requirements of the Social Security Act through December 31, 2012. (T at 21). The ALJ found that Plaintiff’s degenerative disc disease with disk bulges and spondylosis, status/post coccygectomy, ^[2] left carpal tunnel syndrome, and ...