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Tran v. Berryhill

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

April 7, 2017

NGOC TRAN, 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 April 20, 2016, seeking review of the Commissioner's[1] denial of his application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed before the undersigned Magistrate Judge on May 17, 2016, and May 18, 2016. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively “JS”) on February 13, 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 August 26, 1968. [Administrative Record (“AR”) at 23.] He has past relevant work experience as a teacher's aide and a shipping/receiving clerk. [AR at 23, 48.]

         On December 1, 2008, plaintiff filed an application for a period of disability and DIB, alleging that he has been unable to work since April 5, 2007. [AR at 70.] The Commissioner granted his claims and, on May 13, 2010, found continuing disability since April 5, 2007. [AR at 70-72.] The Commissioner initiated a continuing disability review and, on April 30, 2013, found that as of April 1, 2013, plaintiff was no longer disabled. [AR at 82-85.] Plaintiff requested reconsideration of the initial determination, which the Commissioner treated as a request for a hearing. [AR at 87-90.] A hearing was held on May 2, 2014, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [AR at 31-53.] A vocational expert (“VE”) and a medical expert (“ME”) also testified. [AR at 34-39, 47-52.] On September 25, 2014, the ALJ issued a decision concluding that plaintiff's disability ended on April 1, 2013. [AR at 13-24.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 8-9.] When the Appeals Council denied plaintiff's request for review on February 23, 2016 [AR at 1-5], 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. MEDICAL IMPROVEMENT AND CESSATION OF DISABILITY BENEFITS

         Once the Commissioner (or ALJ) finds a claimant to be disabled, a presumption of continuing disability arises. Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (citation omitted). To revoke benefits, “the Commissioner bears the burden of establishing that a claimant has experienced medical improvement that would allow him to engage in substantial gainful activity.” McCalmon v. Astrue, 319 F. App'x 658, 659 (9th Cir. 2009) (citing Murray, 722 F.2d at 500). The Commissioner must follow an eight-step sequential evaluation process in determining whether the claimant's impairments have sufficiently improved to warrant a cessation of Disability Insurance Benefits. See 20 C.F.R. § 404.1594(f). The eight steps are as follows: (1) if the claimant is currently engaged in substantial gainful activity (“SGA”), disability has ended; (2) if not, and the claimant has an impairment or combination of impairments that meets or equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether medical improvement has occurred; (4) if so, the ALJ will determine whether the improvement is related to the claimant's ability to work (i.e., to an increase in the claimant's residual functional capacity (“RFC”)[2]); (5) if no medical improvement -- or no improvement related to ability to work --has occurred, disability continues, unless certain exceptions apply[3]; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all the current impairments, in combination, are “severe”; if not, disability ends; (7) if the claimant meets the “severity” criteria, the ALJ will determine the current RFC, and, if the claimant is able to do past work, disability ends; (8) if the claimant remains unable to do past work, the ALJ will determine whether the claimant can do other work, given his RFC, age, education and past work experience. If so, disability ends. If not, disability continues. 20 C.F.R. § 404.1594(f).

         B. THE ALJ'S APPLICATION OF THE EIGHT-STEP EVALUATION PROCESS

         In this case, on May 13, 2010, an ALJ determined that plaintiff became disabled on April 5, 2007, [4] and had the medically determinable impairments of degenerative disc disease of the lumbar spine and status post-multilevel fusion, which were found to meet section 1.04 of the Listing. [AR at 70.] The ALJ also found that from April 5, 2007, through May 13, 2010, the hearing date, plaintiff was unable to work due to his disability. [AR at 54-69, 70-75.] On September 25, 2014, at step one of the eight-step medical improvement analysis, a different ALJ determined that through April 1, 2013, the date he determined that plaintiff's disability ended, plaintiff had not engaged in SGA. [AR at 15.] At step two, the ALJ determined that as of April 1, 2013, plaintiff had the medically determinable impairments of post laminectomy syndrome; degenerative disc disease; status post L4-S1 microdiscectomy and laminectomy; lumbosacral musculoligamentous strain; lumbar radiculopathy; and depressive disorder. [AR at 15.] The ALJ determined that since April 1, 2013, plaintiff's impairments did not meet or equal any of the impairments in the Listing.[Id.] At step three, the ALJ determined that medical improvement occurred as of April 1, 2013. [Id.] At step four, the ALJ determined that plaintiff's medical improvement is related to his ability to work. [AR at 16.] Due to the ALJ's step four finding, no step five finding was necessary. See 20 C.F.R. § 404.1594(f)(5). At step six, the ALJ concluded that as of April 1, 2013, plaintiff continued to have a severe impairment or combination of impairments. [AR at 17.] At step seven, the ALJ found that as of April 1, 2013, plaintiff had the RFC “to perform less than the full range of light work” as defined in 20 C.F.R. § 404.1567(b), [5] as follows:

Specifically, [plaintiff] could lift and/or carry ten pounds frequently, twenty pounds occasionally; he could sit, stand and/or walk for six hours out of an eight-hour workday with a sit/stand option at will; he could occasionally push and pull, climb, balance, stoop, kneel, crouch, and crawl; he is not to climb ladders, ropes or scaffolds; he is to avoid all exposure to extreme cold, extreme heat, and vibrations; he could understand, remember, and carry out simple job instructions, but would be unable to perform work that would require directing others, abstract thought, or planning; and he could maintain attention and concentration to perform simple, routine and repetitive tasks in a work environment free of fast-paced production requirements.

[AR at 17-18.] The ALJ also determined that as of April 1, 2013, plaintiff was unable to perform his past relevant work as a teacher's aide and a shipping/receiving clerk. [AR at 23.] At step eight, 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 an “electronics worker” (Dictionary of Occupational Titles (“DOT”) No. 726.687-010), “small product assembler” (DOT No. 706.684-022), and “parking lot booth attendant” (DOT No. 211.462-038). [AR at 24, 48-50.] Accordingly, the ALJ determined that plaintiff's period of disability ended on April 1, 2013. [AR at 24.]

         V. THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when he: (1) failed to make a finding that plaintiff had a disability “at any time after April 1, 2013, through the date of decision”; (2) assessed the medical evidence of physical impairment; (3) assessed the medical evidence of mental impairment; and (4) rejected plaintiff's subjective symptom testimony. [JS at 5 (emphasis added).] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. RELEVANT TIME PERIOD FOR DISABILITY STATUS

         Plaintiff contends that the ALJ failed to adjudicate plaintiff's disability status through the date of the decision as required by Social Security Ruling (“SSR”)[6] 13-3p. [JS at 5-6.] Defendant responds that there was no error because the ALJ considered all the relevant medical evidence concerning plaintiff's condition from April 1, 2013, “up to and including all relevant evidence existing in Plaintiff's file as of the ALJ's September 23, 2014 decision.” [JS at 7 (citations omitted).]

         SSR 13-3p requires the ALJ to decide “whether the beneficiary is under a disability through the date of the [ALJ's] determination or decision.” SSR 13-3p, 2013 WL 785484, at *4 (Feb. 21, 2013). Although defendant argues that plaintiff did not meet the insured status requirements as of the date of the ALJ's decision, the ALJ did not expressly state that plaintiff was not disabled through the date of the decision, nor did the ALJ provide a reason for not expressly determining plaintiff's disability status through the date of the decision.

         While the Court cannot affirm the ALJ's decision on a ground that the ALJ did not consider in making his decision (see Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”)), it is nonetheless evident from the record that the ALJ specifically considered whether plaintiff had been disabled from April 1, 2013, through September 25, 2014, the date of the decision. The ALJ summarized and discussed evidence spanning from 2009 through 2014 in determining plaintiff's RFC, including plaintiff's own testimony from the May 2, 2014, hearing. [AR at 18-23.] Thus, any failure of the ALJ to explicitly state that plaintiff had not been disabled from April 1, 2013, through the date of the decision on September 25, 2014, cannot be considered reversible error. This is particularly true given that the bulk of the evidence and testimony discussed by the ALJ was from the period of time after plaintiff's disability was found to have ended. See, e.g., Mendoza v. Colvin, 2016 WL 4126706, at *5 (E.D. Cal. Aug. 2, 2016) (stating that the “Court cannot find it a violation of SSR 13-3p to not use the magic words ‘through the date of this decision' when virtually all the evidence and testimony mentioned and analyzed comes from the period after the Plaintiff's disability was found to have ceased”).

         Remand is not warranted on this issue.

         B. MEDICAL OPINIONS

         1. ...


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