United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
seeks judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her
application for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34, and for Supplemental
Security Income (“SSI”) under Title XVI of the
Social Security Act (“the Act”), 42 U.S.C.
§§ 1381-1383f. For the reasons that follow,
plaintiff's motion for summary judgment will be granted
and defendant's cross-motion for summary judgment will be
denied. The matter will be remanded to the Commissioner for
applied for DIB and for SSI on August 5, 2011. Administrative
Record (“AR”) 202-207 (Exh. 1D), 208-214 (Exh.
The disability onset date for both applications was alleged
to be December 31, 2002. AR 202, 208. The applications were
disapproved initially, AR 145-148 (Exh. 1B), 149-152 (Exh.
2B), and on reconsideration, AR 156-160 (Exh. 4B), AR 161-165
(Exh. 5B). Administrative Law Judge (“ALJ”)
Robert C. Tronvig, Jr. presided over a hearing on June 23,
2013, attended by plaintiff's attorney and Vocational
Expert (“VE”) Jim Van Eck, who testified. AR
78-86. Plaintiff was present and testified at the hearing as
well. AR 53-74, 77, 81.
October 9, 2013, the ALJ found plaintiff “not
disabled” under Sections 216(i) and 223(d) of Title II
of the Act, 42 U.S.C. §§ 416(i), 423(d), and
Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C.
§ 1382c(a)(3)(A). AR 11-26 (decision), 27-31 (exhibit
list). On May 12, 2015, the Appeals Council denied
plaintiff's request for review, leaving the ALJ's
decision as the final decision of the Commissioner of Social
Security. AR 1-5 (decision).
filed this action on July 10, 2015. ECF No. 1; see
42 U.S.C. §§ 405(g), 1383c(3). The parties
consented to the jurisdiction of the magistrate judge. ECF
Nos. 26 (plaintiff), 6 (defendant). The cross-motions for
summary judgment, based upon the Administrative Record filed
by the Commissioner, have been fully briefed. ECF Nos. 18,
was born in 1964, and accordingly was 38 years old on the
alleged disability onset date, making her a “younger
person” under the regulations. AR 25; see 20
C.F.R §§ 404.1563(c) (age as a vocational factor),
416.963(c) (same). Plaintiff has at least a high school
education, and can communicate in English. Id.
federal court's review of Social Security determinations
is quite limited.” Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015). The Commissioner's
decision that a claimant is not disabled will be upheld
“unless it contains legal error or is not supported by
substantial evidence.” Garrison v. Colvin, 759
F.3d 995, 1009 (9th Cir. 2014). “‘The findings of
the Secretary as to any fact, if supported by substantial
evidence, shall be conclusive . . ..'” Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting
42 U.S.C. § 405(g)).
evidence' means more than a mere scintilla, but less than
a preponderance; it is such relevant evidence as a reasonable
person might accept as adequate to support a
conclusion.” Garrison, 759 F.3d at 1009.
“While inferences from the record can constitute
substantial evidence, only those reasonably drawn from the
record will suffice.” Widmark v. Barnhart, 454
F.3d 1063, 1066 (9th Cir. 2006) (citation and internal
quotation marks omitted).
court reviews the record as a whole, “weighing both the
evidence that supports and the evidence that detracts from
the Commissioner's conclusion.” Rounds v.
Commissioner Social Security Admin., 807 F.3d 996, 1002
(9th Cir. 2015); Attmore v. Colvin, 827 F.3d 872,
875 (9th Cir. 2016) (“[w]e cannot affirm …
“simply by isolating a specific quantum of supporting
the ALJ's responsibility “to determine credibility,
resolve conflicts in the testimony, and resolve ambiguities
in the record.” Brown-Hunter, 806 F.3d at 492
(internal quotation marks omitted). “Where the evidence
is susceptible to more than one rational interpretation, one
of which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Thus, in
reviewing the Commissioner's decision, this court does
not substitute its discretion for that of the Commissioner.
See Brown-Hunter, 806 F.3d at 492 (“[f]or
highly fact-intensive individualized determinations like a
claimant's entitlement to disability benefits, Congress
places a premium upon agency expertise, and, for the sake of
uniformity, it is usually better to minimize the opportunity
for reviewing courts to substitute their discretion for that
of the agency”) (internal quotation marks omitted).
court may review “only the reasons provided by the ALJ
in the disability determination and may not affirm the ALJ on
a ground upon which he did not rely.”
Garrison, 759 F.3d at 1010. Finally, the court will
not reverse the Commissioner's decision if it is based on
“harmless error, ” meaning that the error
“is inconsequential to the ultimate nondisability
determination ….” Brown-Hunter, 806
F.3d at 492 (internal quotation marks omitted).
Insurance Benefits and Supplemental Security Income are
available for every eligible individual who is
“disabled.” 42 U.S.C. §§ 423(d)(1)(A),
1382(a)(3)(A). Plaintiff is “disabled” if she is
unable “‘to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months ….'”
Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting
42 U.S.C. §§ 423(d)(1)(A)).
Commissioner uses a five-step sequential evaluation process
to determine whether an applicant is disabled and entitled to
benefits. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20,
24-25 (2003) (setting forth the “five-step sequential
evaluation process to determine disability” under Title
II and Title XVI). The following summarizes the sequential
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is not disabled. If not,
proceed to step two.
20 C.F.R. §§ 404.1520(a)(4)(i), (b) and
Step two: Does the claimant have a “severe”
impairment? If so, proceed to step three. If not, the
claimant is not disabled.
Id., §§ 404.1520(a)(4)(ii), (c) and
Step three: Does the claimant's impairment or combination
of impairments meet or equal an impairment listed in 20
C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is
disabled. If not, proceed to step four.
Id., §§ 404.1520(a)(4)(iii), (d) and
Step four: Does the claimant's residual functional
capacity make him capable of performing his past work? If so,
the claimant is not disabled. If not, proceed to step five.
Id., §§ 404.1520(a)(4)(iv), (e), (f) and
416.920(a)(4)(iv), (e), (f).
Step five: Does the claimant have the residual functional
capacity perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.
Id., §§ 404.1520(a)(4)(v), (g) and
plaintiff bears the burden of proof in the first four steps
of the sequential evaluation process. 20 C.F.R. §§
404.1512(a) (“In general, you have to prove to us that
you are blind or disabled”), 416.912(a) (same);
Bowen, 482 U.S. at 146 n.5. However, “[a]t the
fifth step of the sequential analysis, the burden shifts to
the Commissioner to demonstrate that the claimant is not
disabled and can engage in work that exists in significant
numbers in the national economy.” Hill v.
Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012);
Bowen, 482 U.S. at 146 n.5.
made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2007.
2. [Step 1] The claimant has not engaged in substantial
gainful activity since December 31, 2002, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et
3. [Step 2] The claimant has the following severe
impairments; multiple level cervical degenerative disc
disease (“DDD”), cervical narrowing most
prominent at ¶ 3-4 and C5-6, chronic back pain, bipolar
I disorder, and recurrent major depression (20 CFR
404.1520(c) and 416.920(c)).
4. [Step 3] 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. [Preparation for Step 4] After careful consideration of
the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c), except no
climbing ladders/ropes/scaffolds and mentally limited to
simple tasks (unskilled work) with limited peer and public
6. [Step 4] The claimant is unable to perform any past
relevant work (20 CFR 404.1565 and 416.965).
7. [Step 5] The claimant was born on … 1964 and was 38
years old, which is defined as a younger individual age
18-49, on the alleged disability onset date (20 CFR 404.1563
8. [Step 5, continued] The claimant has at least a high
school education and is able to communicate in English (20
CFR 404.1564 and 416.964).
9. [Step 5, continued] 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. [Step 5, continued] 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 December 31, 2002, through
the date of this decision (20 CFR 404.1520(g) and
noted, the ALJ concluded that plaintiff was “not
disabled” under Sections 216(i) and 223(d) of Title II
of the Act, 42 U.S.C. §§416(i), 423(d), and Section
1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. §
1382(a)(3)(A). AR 26.
alleges the ALJ committed the following legal errors: (1) he
failed to properly weigh and credit treating opinion
evidence, and rejected examining and non-examining medical
opinion evidence he purported to accord “significant
weight” without articulating legitimate reasons for so
doing; and (2) he failed to credit plaintiff's testimony
and statements regarding the impact of her impairments and
symptoms on her ability to function without articulating
clear and convincing reasons for so doing. Plaintiff requests
that the matter be remanded to the Commissioner for payment
of benefits, or in the alternative, for further proceedings
with the appropriate corrective instructions. (ECF No. 18 at
The ALJ's Evaluation of Medical Opinion Evidence
Principals Governing Consideration of Medical Opinion
Ninth Circuit, courts “distinguish among the opinions
of three types of physicians: (1) those who treat the
claimant (treating physicians); (2) those who examine but do
not treat the claimant (examining physicians); and (3) those
who neither examine nor treat the claimant (non-examining
physicians).” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). Generally, more weight should be given
to a treating physician's opinion than to those who do
not treat the claimant, ...