United States District Court, N.D. California, San Jose Division
DON R. SPECIALE, Plaintiff,
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,
LABSON FREEMAN United States District Judge
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 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
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.
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.
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.
Standard of Review
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)).
“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.
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
Standard for Determining 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).
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).
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.
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.
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.
Classification of ...