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Lemelle v. Berryhill

United States District Court, C.D. California, Eastern Division

March 29, 2017

JENNIFER L LEMELLE, Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I. PROCEEDINGS

         Plaintiff filed this action on June 22, 2016, seeking review of the Commissioner's[1] denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on July 22, 2016, and August 19, 2016. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively "JS") on February 27, 2017, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Submission under submission without oral argument.

         II. BACKGROUND

         Plaintiff was born on May 23, 1975. [Administrative Record ("AR") at 33, 127, 196, 198.] She has past relevant work experience as a customer service clerk in combination with account executive, and as a home attendant. [AR at 57-59, 127.]

         On February 6, 2012, plaintiff protectively filed an application for a period of disability and DIB, and on February 8, 2012, she filed an application for SSI payments, alleging that she has been unable to work since March 14, 2009. [AR at 118, 196, 198.] After her applications were denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 118, 148.] A hearing was held on October 22, 2013, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 28-68.] A vocational expert ("VE") also testified. [AR at 31-66, 51-53.] On February 19, 2014, the ALJ issued a decision concluding that plaintiff was not under a disability from March 14, 2009, the alleged onset date, through February 19, 2014, the date of the decision. [AR at 118-29.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 26.] When the Appeals Council denied plaintiff's request for review on September 25, 2015 [AR at 12-16], 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.

         III. STANDARD OF REVIEW

         Pursuant 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).

         "Substantial 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.") (citation omitted).

         IV. THE EVALUATION OF DISABILITY

         Persons 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. 1992).

         A. THE FIVE-STEP EVALUATION PROCESS

         The 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.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since March 14, 2009, the alleged onset date.[2] [AR at 120.] At step two, the ALJ concluded that plaintiff has the severe impairments of migraines; disorder of the cervical spine; and depression. [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. [AR at 121.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")[3] to perform less than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), [4] as follows:

[Plaintiff] would be restricted to the following: lifting and carrying no more than 20 pounds occasionally and 10 pounds frequently; pushing and pulling within these weight limits on an occasional basis; standing and walking six hours out of an eight-hour workday, with no prolonged walking greater than 30 minutes at a time; sitting six hours out of an eight-hour workday with the ability to stand and stretch, for one minute at the end of each hour, not to exceed 10 percent of the day; no ladders, ropes, or scaffolds; no work hazards such as working at unprotected heights, working on or with dangerous or fast moving machinery, or driving commercial vehicles; unskilled work; simple, routine, repetitive tasks; and occasional contact with the public, coworkers and supervisors.

[AR at 123.] 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 in the combination position of customer service clerk and account executive, and as a home attendant. [AR at 59-60, 127.] 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), "photo copy machine operator" (DOT No. 207.685-014), and "folder" (DOT No. 369.687-014). [ARat60, 128.] Accordingly, the ALJ determined that ...


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