United States District Court, C.D. California
TASHAWNA M. GREEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF
ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE
Tashawna M. Green filed her application for supplemental
security income pursuant to Title XVI of the Social Security
Act on August 15, 2012 alleging disability beginning July 27,
2002. After denial on initial review and on reconsideration,
a hearing took place before an Administrative Law Judge (ALJ)
on November 5, 2013 and March 24, 2014, at which Plaintiff
testified on her own behalf. In a decision dated May 1, 2014,
the ALJ found that Plaintiff was not disabled within the
meaning of the Social Security Act since August 15, 2012, the
date the application was filed. The Appeals Council declined
to set aside the ALJ's unfavorable decision in a notice
dated October 28, 2015. Plaintiff filed a Complaint herein on
December 21, 2015, seeking review of the Commissioner's
denial of her application for benefits.
accordance with the Court's Order Regarding Further
Proceedings, Plaintiff filed a memorandum in support of the
complaint on December 16, 2016 (“Pl. Mem.”); the
Commissioner filed a memorandum in support of her answer on
January 13, 2017 (“Def. Mem.”); Plaintiff not
file a reply. This matter now is ready for
reflected in the parties' memoranda, the sole disputed
issue in this case is whether the ALJ articulated specific
and legitimate reasons in rejecting plaintiff's credible
STANDARD OF REVIEW
42 U.S.C. § 405(g), this Court reviews the
Commissioner's decision to determine whether the
Commissioner's findings are supported by substantial
evidence and whether the proper legal standards were applied.
See Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1098 (9th Cir. 2014). Substantial evidence means
“more than a mere scintilla” but less than a
preponderance. See Richardson v. Perales, 402 U.S.
389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. This Court must review
the record as a whole, weighing both the evidence that
supports and the evidence that detracts from the
Commissioner's conclusion. Lingenfelter, 504
F.3d at 1035. Where evidence is susceptible of more than one
rational interpretation, the Commissioner's decision must
be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th
FIVE-STEP EVALUATION PROCESS
Commissioner (or ALJ) follows a five-step sequential
evaluation process in assessing whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920;
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995), as amended April 9, 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 is denied.
Id. If the claimant is not currently 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 nondisability is made and
the claim is denied. Id. 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.
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 “residual
functional capacity” to perform his past work; if so,
the claimant is not disabled and the claim is denied.
Id. The claimant has the burden of proving that he
is unable to perform past relevant work. Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the
claimant meets this burden, a prima facie case of
disability is established. Id. 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. Id. The
determination of this issue comprises the fifth and final
step in the sequential analysis. 20 C.F.R. §§
404.1520, 416.920; Lester, 81 F.3d at 828 n.5;
Drouin, 966 F.2d at 1257.
THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 15, 2012, her
application date. (AR 11.) At step two, the ALJ found that
Plaintiff had the severe impairment of diabetes mellitus.
(Id.) At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments. (AR 12.) At step four, the ALJ found that
Plaintiff has had the following residual functional capacity
(RFC): able to lift 25 pounds frequently and 50 pounds
occasionally; able to stand and/or walk six hours in an
eight-hour workday; able to sit six hours in an eight-hour
workday; and precluded from walking on uneven terrain and/or
working at unprotected heights. (AR 13.) The ALJ determined
that Plaintiff has been capable of performing her past
relevant work as a certified nurse's assistant. (AR 14.)
Accordingly, the ALJ concluded that Plaintiff was not
disabled under the Social Security Act since August 15, 2012.
ALJ's assessment of pain severity and claimant
credibility is entitled to “great weight.”
Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.
1989). Where the claimant has produced objective medical
evidence of an impairment which could reasonably be expected
to produce some degree of pain and/or other symptoms, and the
record is devoid of any affirmative evidence of malingering,
the ALJ may reject the claimant's testimony regarding the
severity of the claimant's pain and/or other symptoms
only if the ALJ makes specific findings stating clear and
convincing reasons for doing so. See Cotton v.
Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Here, since the Commissioner has not argued that there was
evidence of malingering and that a lesser standard
consequently should apply, the Court will apply the
“clear and convincing” standard to the ALJ's