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Friesth v. Berryhill

United States District Court, C.D. California

March 7, 2017

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.


          KAREN E. SCOTT United States Magistrate Judge.

         Plaintiff 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 (“DIB”).

         Because 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.

         I. BACKGROUND

         Plaintiff 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.

         On 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.

         Based 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 disabled.


         Under 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.

         “A 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).

         A. The Evaluation of Disability.

         A 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).

         B. The Five-Step Evaluation Process.

         The ALJ 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), 416.920(a)(4)(i).

         If the 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).

         When an 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) ...

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