United States District Court, E.D. California
MICHAEL A. GRUBER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
who is proceeding with retained counsel, brings this action
for judicial review of a final decision of the Commissioner
of Social Security under 42 U.S.C. § 405(g). Pursuant to
the written consent of all parties, this case is before the
undersigned as the presiding judge for all purposes,
including entry of final judgment. See 28 U.S.C.
§ 636(c). Pending before the court are plaintiff's
motion for summary judgment (Doc. 14), and defendant's
cross-motion for summary judgment (Doc. 21).
applied for social security benefits on January 19, 2012,
alleging an onset of disability on October 14, 2009, due to
disabilities including bad heart, seven way bypass, titanium
rod in right leg, torn rotator cuff, affective mood disorder,
and chronic ischemic heart disease with or without angina
(Certified administrative record (“CAR”) 85-86,
97-98, 109-110, 206-210). Plaintiff's claim was denied
initially and upon reconsideration. Plaintiff requested an
administrative hearing, which was held on September 10, 2013,
before Administrative Law Judge (“ALJ”) Bradlee
S. Welton. In a January 30, 2014, decision, the ALJ concluded
that plaintiff is not disabled based on the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful
activity since October 14, 2009, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments:
degenerative disc disease of the lumbar and cervical spine,
torn right rotator cuff, status post coronary artery bypass
graft, anxiety, and degenerative joint disease of the right
knee (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant can lift
and/or carry twenty pounds occasionally and ten pounds
frequently, can sit for six hours in an eight-hour day with
the option to stand up every thirty minutes for one to two
minutes at the work station to stretch, can stand and/or walk
for six hours in an eight-hour day, can occasionally climb
ramps and/or stairs, can occasionally stoop, balance, crouch,
crawl and kneel, cannot climb ladders, ropes or scaffolds,
can occasionally reach overhead with the right upper
extremity, can occasionally finger with the right upper
extremity and can occasionally interact with the public and
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
7. The claimant was born on August 26, 1961 and was 48 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date. The claimant subsequently
changed age category to closely approaching advanced age (20
CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined
in the Social Security Act, from October 14, 2009, through
the date of this decision (20 CFR 404.1520(g) and
(CAR 9-17). After the Appeals Council declined review on
March 6, 2015, this appeal followed.
STANDARD OF REVIEW
court reviews the Commissioner's final decision to
determine whether it is: (1) based on proper legal standards;
and (2) supported by substantial evidence in the record as a
whole. See Tackett v. Apfel, 180 F.3d 1094, 1097
(9th Cir. 1999). “Substantial evidence” is more
than a mere scintilla, but less than a preponderance. See
Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It
is “such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 402 (1971). The record as a
whole, including both the evidence that supports and detracts
from the Commissioner's conclusion, must be considered
and weighed. See Howard v. Heckler, 782 F.2d 1484,
1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d
993, 995 (9th Cir. 1985). The court may not affirm the
Commissioner's decision simply by isolating a specific
quantum of supporting evidence. See Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial
evidence supports the administrative findings, or if there is
conflicting evidence supporting a particular finding, the
finding of the Commissioner is conclusive. See Sprague v.
Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
Therefore, where the evidence is susceptible to more than one
rational interpretation, one of which supports the
Commissioner's decision, the decision must be affirmed,
see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002), and may be set aside only if an improper legal
standard was applied in weighing the evidence, see
Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
argues the ALJ erred in three ways: 1) the ALJ failed to
explain both the physical and mental Residual Functional
Capacity (RFC); 2) the ALJ erred in ignoring both
plaintiff's testimony and that of his sister; and 3) the
ALJ erred in discrediting his treating physician's
opinion. The court will address these issues in reverse
argues the ALJ wrongly rejected Dr. Dhaliwal's opinion.
Dr. Dhaliwal, who plaintiff states was a treating physician,
examined plaintiff, reviewed the treating records, and
determined plaintiff is limited in his physical abilities.
Dr. Dhaliwal noted in his September 25, 2013, letter that
plaintiff had last been seen in 2009, but he did not
specifically remember him as a patient. After noting
plaintiff's medical conditions, he found plaintiff's
physical examination showed limitations with bending his back
as well as the use of his right shoulder. Specifically, Dr.
Dhaliwal found plaintiff limited in sitting and standing no
more than 4-6 hours in an 8-hour day, reaching, grasping,
lifting no more than 20 pounds for no more than 3-4 hours in
an 8-hour day; no running, climbing and lifting greater than
20 pounds; and no reaching above the shoulder or repetitive
motion with right arm for 2 hours.
rejected Dr. Dhaliwal's opinion, in favor of another