United States District Court, C.D. California, Eastern Division
MEMORANDUM OPINION AND ORDER
ABRAMS UNITED STATES MAGISTRATE JUDGE
filed this action on June 30, 2016, seeking review of the
Commissioner's denial of her application for
Supplemental Security Income (“SSI”) payments.
The parties filed Consents to proceed before the undersigned
Magistrate Judge on July 26, 2016, and August 23, 2016.
Pursuant to the Court's Order, the parties filed a Joint
Stipulation (alternatively “JS”) on February 28,
2017, that addresses their positions concerning the disputed
issues in the case. The Court has taken the Joint Stipulation
under submission without oral argument.
was born on October 8, 1968. [Administrative Record
(“AR”) at 77, 218.] She has past relevant work
experience as a certified nurse assistant, care companion,
and cashier. [AR at 77, 116.]
March 26, 2012, plaintiff protectively filed an application
for SSI payments, alleging that she has been unable to work
since January 1, 1998. [AR at 67, 218-24.] After her
application was denied initially and upon reconsideration,
plaintiff timely filed a request for a hearing before an
Administrative Law Judge (“ALJ”). [AR at 67,
177.] A hearing was held on September 5, 2014, at which time
plaintiff appeared represented by an attorney, and testified
on her own behalf. [AR at 84-122.] A vocational expert
(“VE”) also testified. [AR at 225-20.] On
November 18, 2014, the ALJ issued a decision concluding that
plaintiff was not under a disability since March 26, 2012,
the date the application was filed. [AR at 67-79.] Plaintiff
requested review of the ALJ's decision by the Appeals
Council. [AR at 62-63.] When the Appeals Council denied
plaintiff's request for review on April 22, 2016 [AR at
6-11], the ALJ's decision became the final decision of
the Commissioner. See Sam v. Astrue, 550 F.3d 808,
810 (9th Cir. 2008) (per curiam) (citations
omitted). This action followed.
to 42 U.S.C. § 405(g), this Court has authority to
review the Commissioner's decision to deny benefits. The
decision will be disturbed only if it is not supported by
substantial evidence or if it is based upon the application
of improper legal standards. Berry v. Astrue, 622
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1159 (9th Cir. 2008) (citation and internal quotation
marks omitted); Reddick v. Chater, 157 F.3d 715, 720
(9th Cir. 1998) (same). When determining whether substantial
evidence exists to support the Commissioner's decision,
the Court examines the administrative record as a whole,
considering adverse as well as supporting evidence. Mayes
v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)
(citation omitted); see Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A]
reviewing court must consider the entire record as a whole
and may not affirm simply by isolating a specific quantum of
supporting evidence.”) (citation and internal quotation
marks omitted). “Where evidence is susceptible to more
than one rational interpretation, the ALJ's decision
should be upheld.” Ryan, 528 F.3d at 1198
(citation and internal quotation marks omitted); see
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006) (“If the evidence can support either affirming or
reversing the ALJ's conclusion, [the reviewing court] may
not substitute [its] judgment for that of the ALJ.”)
EVALUATION OF DISABILITY
are “disabled” for purposes of receiving Social
Security benefits if they are 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 twelve months. 42 U.S.C. § 423(d)(1)(A);
Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
THE 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 her 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 her past work; if so,
the claimant is not disabled and the claim is denied.
Id. The claimant has the burden of proving that she
is unable to perform past relevant work. Drouin, 966
F.2d at 1257. 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 she 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 March 26, 2012, the
application date. [AR at 69.] At step two, the ALJ concluded
that plaintiff has the severe impairments of morbid obesity;
sleep apnea; bilateral ankle impairments; back pain; and mood
disorder. [Id.] At step three, the ALJ determined
that plaintiff does not have an impairment or a combination
of impairments that meets or medically equals any of the
impairments in the Listing. [Id.] The ALJ further
found that plaintiff retained the residual functional
capacity (“RFC”) to perform less than a
full range of light work as defined in 20 C.F.R. §
416.967(b),  as follows:
[C]an lift and/or carry 20 pounds occasionally and 10 pounds
frequently; she can stand and/or walk for two hours out of an
eight-hour workday with regular breaks; she can sit for six
hours out of an eight-hour workday with regular breaks; she
is unlimited with respect to pushing and/or pulling, other
than as indicated for lifting and/or carrying; she is limited
to occasional postural activities, but is precluded f[ro]m
climbing ladders, scaffolds or ropes and is unable to work at
unprotected heights or around dangerous machinery.
[Plaintiff] is limited to non-complex routine tasks, and is
unable to perform tasks requiring hypervigilence or
responsibility for the safety of others. [Plaintiff] is
unable to perform jobs requiring public contact.
[AR at 70.] At step four, based on plaintiff's RFC and
the testimony of the VE, the ALJ concluded that plaintiff is
unable to perform any of her past relevant work as a
certified nurse assistant, care companion, or cashier. [AR at
77, 116.] At step five, based on plaintiff's RFC,
vocational factors, and the VE's testimony, the ALJ found
that there are jobs existing in significant numbers in the
national economy that plaintiff can perform, including work
as a “mail clerk” (Dictionary of
Occupational Titles (“DOT”) No.
209.687-026), “general office clerk” (DOT No.
209.562-010), and “agricultural sorter” (DOT No.
521.687-086). [AR at 31, 76-79.] Accordingly, the ALJ
determined that plaintiff was not disabled at any time since
March 26, 2012, the date the application was filed. [AR at
contends that the ALJ erred when he: (1) rejected the
opinions of Robert H. Kounang, M.D., who examined plaintiff
for purposes of determining whether she qualifies for a power
wheelchair; and (2) discounted plaintiff's subjective
symptom testimony. [JS at 4.] As set forth below, the Court
agrees with plaintiff, in part, and remands for further