United States District Court, C.D. California
CHERIE L. FRIESTH, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
E. SCOTT United States Magistrate Judge.
Cherie L. Friesth (“Plaintiff”) appeals the final
decision of the Administrative Law Judge (“ALJ”)
denying her application for supplemental security income
(“SSI”) and Disability Insurance Benefits
the ALJ erred in failing to incorporate into Plaintiff's
residual functional capacity (“RFC”) limitations
consistent with the ALJ's express finding that Plaintiff
has “moderate” limitations in the area of
concentration, persistence, and pace, the Commissioner's
decision is REVERSED and the matter is REMANDED for further
proceedings consistent with this opinion.
applied for DIB and SSI on April 12, 2016, alleging a
disability onset date of February 26, 2012. Administrative
Record (“AR”) 185-186; 187-192. An ALJ conducted
a hearing on September 22, 2014, at which Plaintiff, who was
represented by an attorney, appeared and testified. AR 35-68.
November 12, 2014, the ALJ issued a written decision denying
Plaintiff's request for benefits. AR 19-29. The ALJ found
that Plaintiff suffered from medically determinable severe
impairments consisting of Fibromyalgia, anxiety, and
depression. AR 21. Notwithstanding her impairments, the ALJ
concluded that Plaintiff had the RFC to perform light work
with the additional limitations: no more than frequent
postural activities, no complex tasks or decision-making, and
able to perform simple to semi-skilled work. Id.
on this RFC and the testimony of a vocational expert
(“VE”), the ALJ found that Plaintiff could not
return to her past relevant work as a registered nurse, store
manager or cook, but that she could find work as a retail
sales clerk, cashier, ticket taker or cafeteria attendant. AR
27-28. Therefore, the ALJ concluded that Plaintiff is not
STANDARD OF REVIEW
42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. The ALJ's
findings and decision should be upheld if they are free from
legal error and are supported by substantial evidence based
on the record as a whole. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial evidence means such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion. Richardson, 402 U.S. at 401;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). It is more than a scintilla, but less than a
preponderance. Lingenfelter, 504 F.3d at 1035
(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). To determine whether substantial
evidence supports a finding, the reviewing court “must
review the administrative record as a whole, weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion.” Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
evidence can reasonably support either affirming or
reversing, ” the reviewing court “may not
substitute its judgment” for that of the Commissioner.
Id. at 720-21.
decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). Generally, an error is harmless if it
either “occurred during a procedure or step the ALJ was
not required to perform, ” or if it “was
inconsequential to the ultimate nondisability
determination.” Stout v. Comm'r, Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
The Evaluation of Disability.
person is “disabled” for purposes of receiving
Social Security benefits if he is 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 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A
claimant for disability benefits bears the burden of
producing evidence to demonstrate that he was disabled within
the relevant time period. Johnson v. Shalala, 60
F.3d 1428, 1432 (9th Cir. 1995).
The Five-Step Evaluation Process.
follows a five-step sequential evaluation process in
assessing whether a claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Lester v.
Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 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
must be denied. 20 C.F.R. §§ 404.1520(a)(4)(i),
claimant is not 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 not
disabled is made and the claim must be denied. Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
applicant for disability benefits claims mental impairment,
the ALJ must employ the “special psychiatric review
technique” described in 20 C.F.R. § 404.1520a to
determine whether the mental impairment is
“severe.” Keyser v. Comm'r of Soc. Sec.
Admin, 648 F.3d 721, 725 (9th Cir. 2011). As the Ninth
Circuit explained in Keyser, “[t]hat
regulation requires those reviewing an application for
disability to follow a special psychiatric review technique.
20 C.F.R. § 404.1520a. Specifically, the reviewer must
determine whether an applicant has a medically determinable
mental impairment, id. § 404.1520a(b), rate the
degree of functional limitation for four functional areas,
id. § 404.1520a(c), [and] determine the
severity of the mental impairment (in part based on the
degree of functional limitation), id. §
404.1520a(c)(1) ….” Id. at 725.
“The four functional areas the ALJ must assess are: (1)