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Williams v. Berryhill

United States District Court, N.D. California

April 19, 2017

PAMELA J. WILLIAMS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 14, 17

          MARIA-ELENAJAMES United States Magistrate Judge.

         INTRODUCTION

         Plaintiff Pamela J. Williams (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”), the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. Mot., Dkt. No. 14; Opp'n, Dkt. No. 17. The matter was reassigned to the undersigned on March 6, 2017. Dkt. No. 20. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (“AR”), and the relevant legal authority, the Court hereby GRANTS Plaintiff's motion and DENIES Defendant's cross-motion for the reasons set forth below.

         BACKGROUND

         Between 1980 and December 2008, Plaintiff worked as a customer service representative for a telecommunications company. AR 178. For 7.5 hours of her work-day, she sat at a desk; for 0.5 hours of her work-day, she walked. AR 179. Her work consisted of handling 100-125 callers per day; she placed customer orders, created customer contracts, and handled billing issues. Id. She alleges she became disabled as of January 2011; she was 49 years old. AR 15, 169.

         SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

         In January 2011, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability beginning on January 14, 2011. AR 169. After the Social Security Administration (“SSA”) denied Plaintiff's claim initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 102, 108, 113. ALJ Regina Sleater conducted an initial hearing on August 12, 2012, but continued the hearing to allow Plaintiff to obtain representation. See AR 27-44. During the January 17, 2013 supplemental hearing, Plaintiff testified in person and was represented by counsel, Patrick Kelly; the ALJ also heard additional medical expert testimony from Shakil Mohammed, M.D., and testimony from Vocational Expert (“VE”) James Westman. AR 45-93.

         A. Plaintiff's Testimony

         A rheumatologist diagnosed Plaintiff with fibromyalgia in 2003. AR 58-59. Plaintiff saw her rheumatologist, Dr. Claudia Kuzis, “off and on” from that time through November 2012; she also saw Dr. Cheung for treatment. AR 59-61. Every six months, Plaintiff's symptoms would flare up and she would take two to three weeks off from work to recuperate. AR 70-71. She did not take medications for her fibromyalgia while she was working, but at the time of the January 17th hearing, she was taking Cymbalta and had discontinued taking Gabapentin. AR 69-70.

         Plaintiff stopped working in 2009, after her employer closed the location where she had worked and she chose to take an early retirement package. AR 57-58, 76. Since she stopped working, her condition has progressively worsened: while she used to have a flare-up every six months, since 2010 or 2011, she has been in constant pain. AR 76. She spends most of her day in bed, as constant siting exacerbates her symptoms. AR 75, 77. Some days she will go to the market to shop for light groceries; sometimes her husband will take her out to eat. AR 75. Sometimes she makes breakfast for her husband. AR 75.

         B. Vocational Expert's Testimony

         VE Westman testified Plaintiff's past relevant work was “quite straight forward, ” as she had “a long continued work history for a telecommunication utility.” AR 81. She worked as a customer service representative, which the Dictionary of Occupational Titles (“DOT”) defines as a sedentary position, skilled, with a Skilled Vocational Preparation (“SVP”) level of 5. AR 81. He further testified that “based on the claimant's description” on page 3 of Exhibit 2E (Plaintiff's Disability Report), Plaintiff performed the job consistent with the DOT. Id.

         As is relevant here, the VE testified that a person of Plaintiff's age, education, and vocational background who can stand and walk for six out of eight hours and sit for six out of eight hours could perform Plaintiff's past work. AR 82. The same person who needed to change positions for a minute every 15 minutes while seated, without needing to leave the workplace and without “necessary have to be not working if there is something to do that could be done standing” could also perform Plaintiff's past work. AR 83-84 (Plaintiff could still perform her past relevant work under that hypothetical “as long as she could still stand up for that one minute time frame, still communicate with the customer by having the telephone headset.”). A person who could stand and walk for four out of eight hours instead of the six hours posed in the first hypothetical could still work as a customer service representative, even if she were off-task due to pain for less than ten percent of the time, as long as her being off-task was interspersed throughout the day. AR 84-85. If that person were off-task for ten percent or more of the time, however, there would be “pretty substantial erosion” of that position. AR 85.

         Plaintiff's counsel attempted to pose another hypothetical based on the Residual Function Capacity (“RFC”) questionnaire submitted by orthopedic consultative examiner Dr. Lara Salamacha, M.D. AR 88, 272-74. He asked the VE whether an individual could work as a customer service representative if she could “stand and walk for at least two hours in the morning and two hours in the afternoon up to six hours total in an eight hour day in thirty minute intervals with five minute rest between intervals, ” and “no restrictions on sitting with position changes allowed for five to ten minutes per hour for comfort.” AR 88-89. But the ALJ and Plaintiff's counsel could not agree on what the orthopedist had meant by “five minute breaks.” AR 88-89. The ALJ assumed the individual would be sitting down but working, with the ability to shift positions sitting five to ten minutes per hour for comfort; counsel assumed “rest” “would mean not working.” AR 89-92. The issue was not resolved: as the ALJ and counsel agreed, “[i]t is open to question.” AR 92. The VE testified that an individual who was off-task for five minutes at every thirty minute interval, as Plaintiff interpreted “five minute rest breaks[, ]” would have “too much time off work.” AR 91.

         C. The ALJ's Findings

         The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.[1] 20 C.F.R. § 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

         The ALJ must first determine whether the claimant is performing “substantial gainful activity, ” which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ determined that Plaintiff had not performed substantial gainful activity since January 14, 2011.[2]AR 15.

         At step two, the ALJ must determine, based on medical findings, whether the claimant has a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: obesity, fibromyalgia, low back pain/sciatica, and mild carpal tunnel syndrome. AR 15. The ALJ found Plaintiff's depression was non-severe. AR 15-17.

         If the ALJ determines that the claimant has a severe impairment, the process proceeds to the third step, where the ALJ must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, she is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 17.

         Before proceeding to step four, the ALJ must determine the claimant's RFC. 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff has the RFC to perform “light work” with some limitations, including (as relevant to this Motion), standing and/or ...


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