United States District Court, N.D. California
PAMELA J. WILLIAMS, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 14, 17
MARIA-ELENAJAMES United States Magistrate Judge.
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.
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.
SECURITY ADMINISTRATION PROCEEDINGS
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.
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.
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.
Vocational Expert's Testimony
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.
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.
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.
The ALJ's Findings
regulations promulgated by the Commissioner of Social
Security provide for a five-step sequential analysis to
determine whether a Social Security claimant is
disabled. 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
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.AR 15.
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.
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.
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 ...