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Cisneros-Bello v. Berryhill

United States District Court, E.D. California

March 15, 2017

NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         Maria Cisneros-Bello asserts she is entitled to a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the administrative law judge erred in evaluating illiteracy as a vocational factor, and seeks review of the decision to deny her applications for benefits. For the reasons set forth below, the Commissioner's motion for summary judgment is DENIED and the ALJ's decision is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.


         Plaintiff filed her applications for benefits on August 6, 2012, alleging disability beginning on April 5, 2010. (Doc. 9-3 at 15) The Social Security Administration denied Plaintiff's applications at both the initial level and upon reconsideration. (See generally Doc. 9-4) Plaintiff testified at hearings before an ALJ on October31, 2013, and March 18, 2014. (Doc. 9-3 at 15) The ALJ determined she was not disabled and issued an order denying benefits on April 25, 2014. (Id. at 15-27) When the Appeals Council denied Plaintiff's request for review of the decision on September 15, 2015 (id. at 2-4), the ALJ's findings became the final decision of the Commissioner of Social Security (“Commissioner”).


         District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because “[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


         To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounois v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).


         To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity (“RFC”) to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.

         Pursuant to the five-step process, the ALJ determined Plaintiff did not engage in substantial gainful activity after the alleged onset date of April 5, 2010. (Doc. 9-3 at 17) At step two, the ALJ found Plaintiff's severe impairments included: “degenerative disc disease (DDD), bilateral carpal tunnel syndrome (CTS), myofacial pain syndrome (MPS), affective disorder and anxiety disorder.” (Id.) At step three, the ALJ determined Plaintiff did not have an impairment, or combination of impairments, that met or medically equaled a Listing. (Id. at 18) Next, the ALJ determined:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: [she] can lift and carry occasionally 20 pounds and frequently 10 pounds; stand or walk 2 hours of an 8hour workday with the understanding you can stand or walk no more than 30 minutes continuously; no restrictions in sitting; never climb ladders, ropes, or scaffolding; occasionally climb stairs, balance, stoop, crawl, crouch, or kneel; no exposure to unprotected height; avoid concentrated exposure to extremes of heat, cold, or vibrations; can perform no more than occasionally complex tasks; can constantly perform simple repetitive tasks; no employments were the job duties shall require life or death decisions; and no employments involving confrontational situations such as security work.

(Id. at 19) In addition, the ALJ found Plaintiff was “not able to communicate in English, and [was] considered in the same way as an individual who is illiterate in English.” (Id. at 25) With these factors in mind, the ALJ concluded Plaintiff was “unable to perform any past relevant work.” (Id.) However, the ALJ determined Plaintiff was able to perform other “jobs that exist in significant numbers in the national economy, ” such as small product assembler I, DOT 706.684-022, and final inspector, DOT 727.687-054. (Id. at 25-26) Consequently, the ALJ found Plaintiff was not disabled as defined by the Social Security Act. (Id. at 22)


         Plaintiff's sole argument on appeal is that the ALJ erred at step-five of the sequential evaluation in finding that she is able to perform work as a small product assembler and final inspector. (Doc. 18 at 5-12) According to Plaintiff, the ALJ failed to address conflicts between the testimony of the vocational expert-who opined Plaintiff could work with the residual functional capacity identified by the ALJ- and the language requirements of these jobs as defined by the Dictionary of Occupational Titles. (See id.)

         A.Step Five of the Sequential Evaluation

         At step five, the burden shifts to the Commissioner to show that Plaintiff can perform other substantial gainful activity and a “significant number of jobs exist in the national economy” which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984); see also Osenbrock v. Apfel,240 F.3d 1157, 1162 (9th Cir. 2001) (discussing the burden shift at step five). To make this determination, the ALJ may rely upon job descriptions in the Dictionary of Occupational Titles, which classifies jobs by their exertional and skill requirements, and is published by the United States Department of Labor, Employment & Training Administration. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); 20 C.F.R. § 404.1566(d)(1). In the alternative, the ALJ may call a vocational expert “to testify as to (1) what jobs the claimant, given his or her functional capacity, would be able to do; and (2) the availability of such jobs in the national economy.” Tackett v. Apfel, 180 F.3d 1094, ...

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