United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. SCOTT, United States Magistrate Judge
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.
applied for SSI on September 12, 2013, alleging disability
commencing March 18, 2008. 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.
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.
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.
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.
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 of 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 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).
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).
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).
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.
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.
Consideration of New Evidence Before Appeals
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
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).
the ALJ adequately considered Plaintiff's pain and
symptom testimony. Joint Stipulation (“JS”) at 4.
The ALJ Failed to Provide Clear and Convincing Reasons
for Discounting Plaintiff's Testimony.
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. ...