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Speciale v. Berryhill

United States District Court, N.D. California, San Jose Division

April 28, 2017

DON R. SPECIALE, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND REMANDING TO THE AGENCY [Re: ECF 11, 16]

          BETH LABSON FREEMAN United States District Judge

         Plaintiff Don R. Speciale appeals a final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his application for a period of disability and disability benefits under Title II and Title XVI of the Social Security Act. Upon consideration of the briefing[1] and for the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for summary judgment, GRANTS IN PART AND DENIES IN PART Defendant's cross motion for summary judgment, and Remands the case to the Agency for further proceedings

         I. BACKGROUND

         Speciale, a U.S. citizen, was born on August 8, 1951. Admin R. (“AR”) 11, 27, 115. Speciale has a high school degree and completed one year of college. AR 40, 146. Over the past 15 years, Speciale has worked in the construction industry. AR 146. From March 1994 through June 2003, he worked as a Regional Manager. Id. From December 2005 through July 2008, Speciale worked as a Construction Manager. Id. Most recently, Speciale worked as a Regional Construction Manager, from July 2008 through November 2009. Id. Speciale claims that he worked at least 10 hours per day, 6 days a week in each of these positions. Id.

         On September 18, 2012, Speciale filed an application for a period of disability and disability insurance benefits, alleging disability beginning November 13, 2009. AR 11. Speciale also filed an application for supplemental social security income on September 18, 2012, alleging the same disability start date. Id. Speciale claims disability due to back pain and depression. Id.

         Speciale was denied benefits initially and upon reconsideration. AR 11. He requested and received a hearing before an administrative law judge (“ALJ”) on June 16, 2014. Id. at 11, 74. Speciale appeared and testified at the hearing. Id. at 11. An impartial vocational expert (“VE”), Victoria Rei, also testified at the hearing. Id. On September 22, 2014, ALJ Brenton L. Rogozen issued a written decision finding Speciale not disabled and thus not entitled to benefits. Id. at 11- 18. The ALJ's decision was affirmed by the Appeals Counsel on March 1, 2016, making the ALJ's decision the final decision of the Commissioner of Social Security. Id. at 1-6. Speciale now seeks judicial review of the denial of benefits.

         II. LEGAL STANDARD

         A. Standard of Review

         District courts “have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 USC § 405(g). However, “a federal court's review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Federal courts “‘leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.'” Id. (quoting Treichler v. Comm'r Soc. Sec., 775 F.3d 1090, 1098 (9th Cir. 2014)).

         A court “will disturb the Commissioner's decision to deny benefits only if it is not supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and must be more than a mere scintilla, but may be less than a preponderance.” Rounds v. Comm'r Soc. Sec., 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court “must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Id. (internal quotation marks and citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ's findings must be upheld if supported by reasonable inferences drawn from the record. Id.

         Finally, even when the ALJ commits legal error, the ALJ's decision will be upheld so long as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the ALJ's error was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id.

         B. Standard for Determining Disability

         Disability benefits are available under Title II of the Social Security Act when an eligible claimant 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.” 42 U.S.C. § 423(d)(1)(A).

         “To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals one of the listings in the regulations; (4) whether, given the claimant's residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity (“RFC”) referenced at step four is what a claimant can still do despite his or her limitations. Id. at 1160 n.5. “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v. Comm'r Soc. Sec., 554 F.3d 1219, 1222 (9th Cir. 2009).

         III. DISCUSSION

         The ALJ determined that Speciale had acquired sufficient quarters of coverage to remain insured through December 31, 2014. AR 13. At step one, the ALJ determined that Speciale had not engaged in substantial gainful activity since his alleged onset date of November 13, 2009. Id. At step two, the ALJ found that Speciale had one severe impairment, “degenerative disc disease.” Id. The ALJ stated that although the records showed treatment for various other physical conditions, including hepatitis and a sleep-related breathing disorder, those conditions had not resulted in significant limitations and were therefore non-severe. Id. The ALJ also concluded that Speciale's medically determinable mental impairment of depression “does not cause more than minimal limitation in [his] ability to perform basic mental work activities and is therefore non-severe.” Id. at 14.

         At step three, the ALJ concluded that Speciale did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). AR 15. Between steps three and four, the ALJ found that Speciale had the RFC to perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a). AR 15. At step four, the ALJ found that Speciale was capable of performing past relevant work (“PRW”) as a project manager, and that this work does not require the performance of work-related activities precluded by his RFC. Id. at 18. Thus, the ALJ determined that Speciale had not been under a disability, as defined in the Social Security Act, from November 13, 2009, through the date of the decision. Id. at18.

         Speciale challenges the ALJ's step two and step four determinations, asserting that the ALJ erred by misclassifying his PRW, failing to provide sufficient basis for rejecting the finding and opinions of his treating physicians, failing to properly consider the demonstrated diagnoses of depressive disorder and medication side effects, and failing to consider and assign sufficient weight to the Department of Veterans Affairs' (“VA”) disability rating. The Court addresses each alleged deficiency in turn.

         A. Classification of ...


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