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Braunstein v. Berryhill

United States District Court, C.D. California

March 8, 2017

DIANE SUSAN BRAUNSTEIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT, United States Magistrate Judge

         Plaintiff Diane Susan Braunstein (“Plaintiff”) appeals the final decision of the Administrative Law Judge (“ALJ”) denying her application for supplemental security income (“SSI”). For the reasons discussed below, the Court concludes that the ALJ did not provide clear and convincing reasons supported by substantial evidence for discounting Plaintiff's pain testimony.

         I.

         BACKGROUND

         Plaintiff applied for SSI on September 12, 2013, alleging disability commencing March 18, 2008.[1] Administrative Record (“AR”) 169-77. An ALJ conducted a hearing on September 30, 2014, at which Plaintiff, who was represented by an attorney, appeared and testified. AR 76-99.

         On November 25, 2014, the ALJ issued a written decision denying Plaintiff's request for benefits. AR 56-75. The ALJ found that Plaintiff had the following severe impairments: degenerative disc disease and degenerative arthritis cervical spine with post anterior discectomy and fusion at cervical spine twice with residuals; impingement syndrome right shoulder; carpal tunnel syndrome right wrist with residuals and early degenerative arthritis right knee; and decreased visual acuity. AR 61.

         Notwithstanding her impairments, the ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work with the following additional limitations: she can lift and carry 20 pounds occasionally and 10 pounds frequently; she can stand and walk with normal breaks for a total of six hours of an eight-hour day; she can sit with normal breaks for a total of six hours of an eight-hour day, but she will need to move about every 30 to 40 minutes to stretch for about one to three minutes; no overhead work bilaterally; occasional handling, fingering, and pushing/pulling occasionally with the right dominant hand and frequently with the left hand; no jobs that require an individual to look behind their back where moving their head to look behind their back is a requirement of the job; postural limitations are all occasional except no climbing ladders, ropes, or scaffolds; and no jobs that require driving a vehicle as part of the job. AR 62.

         In formulating Plaintiff's RFC, ALJ primarily considered medical evidence after July 2013, Plaintiff's application date, and the June 2014 opinion of independent consultative examiner, H. Harlan Bleecker, M.D. See AR 63, 65-68. 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, but that she could perform work as an information clerk or usher. AR 69-70. Therefore, the ALJ concluded that Plaintiff is not disabled. Id.

         II.

         STANDARD OF REVIEW

         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 of 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 or she 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 or she 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).

         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. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

         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 RFC to perform his past work; if so, the claimant is not disabled and the claim must be denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.

         If that happens or if the claimant has no past relevant work, 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. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. Id. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257.

         C. Consideration of New Evidence Before Appeals Council.

         “The Commissioner's regulations permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ's decision, as long as the evidence relates to the period on or before the ALJ's decision.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Medical evidence created after the ALJ's decision date that reports on the same conditions a claimant alleges as the bases of her disability may be deemed to relate to the period before the ALJ's decision. See Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (psychiatric evaluation and medical source statement dated after ALJ's decision concerned assessment of claimant's health since his alleged onset date, and therefore were related to the period before the ALJ's decision); Martinez v. Colvin, 2014 WL 4678992, at *4 (C.D. Cal. Sept. 19, 2014) (MRIs taken a week after the ALJ's decision related to the bases for plaintiff's alleged disability and therefore were related to the period before the ALJ's decision).

         District courts “do not have jurisdiction to review a decision of the Appeals Council denying a request for review of an ALJ's decision, because the Appeals Council decision is a non-final agency action.” Id. However, “when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record.” Id. at 1163. The district court must review the record as a whole, including the evidence considered by the Appeals Council, to determine whether the ALJ's decision was supported by substantial evidence. See Id.; Warner v. Astrue, 859 F.Supp.2d 1107, 1115 (C.D. Cal. 2012); Palomares v. Astrue, 87 F.Supp.2d 906, 916 (N.D. Cal. 2012).

         III.

         ISSUE PRESENTED

         Whether the ALJ adequately considered Plaintiff's pain and symptom testimony. Joint Stipulation (“JS”) at 4.

         IV.

         DISCUSSION

         D. The ALJ Failed to Provide Clear and Convincing Reasons for Discounting Plaintiff's Testimony.

         1. Applicable Law.

         An ALJ's assessment of symptom severity and claimant credibility is entitled to “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. ...


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