United States District Court, C.D. California, Western Division
DENNIS S. HEBER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
DOUGLAS F. McCORMICK United States Magistrate Judge.
S. Heber (“Plaintiff”) appeals from the Social
Security Commissioner's final decision denying his
applications for disability insurance benefits and
supplemental security income. For the reasons discussed
below, the Commissioner's decision is affirmed and this
matter is dismissed with prejudice.
applied for supplemental security income and disability
insurance benefits on December 10, 2012, alleging disability
beginning on March 25, 2008. Administrative Record
(“AR”) 56-58, 143-58. After his applications were
denied, AR 45-89, 92-97, he requested a hearing before an
Administrative Law Judge (“ALJ”), AR 98-99. A
hearing was held on May 12, 2015, at which Plaintiff, who was
represented by counsel, testified, as did a vocational expert
(“VE”). AR 31-44.
written decision issued on May 29, 2015, the ALJ denied
Plaintiff's claims. AR 14-30. The ALJ found that
Plaintiff had the severe impairment of “mental
retardation to borderline, ” but it did not meet or
equal an impairment in the Listing of Impairments
(“Listing”) set forth at 20 C.F.R., Part 404,
Subpart P, Appendix 1. AR 19-20. The ALJ found that Plaintiff
retained a residual functional capacity to perform a full
range of work at all exertional levels, including heavy work,
with the following non-exertional limitations: he could
understand and remember tasks; sustain concentration and
persistence; socially interact with the general public,
co-workers, and supervisors; and adapt to workplace changes
frequently enough to perform unskilled, low stress jobs that
require simple instructions. AR 22. Based on the VE's
testimony, the ALJ found that Plaintiff was unable to perform
his past relevant work as a food server and warehouse worker,
but he could work as a hospital cleaner, poultry hanger, and
bag loader. AR 25. Therefore, the ALJ concluded that
Plaintiff was not disabled. AR 26.
requested review of the ALJ's decision. AR 11-13. On
January 20, 2016, the Appeals Council denied review. AR 1-7.
This action followed.
parties dispute whether (1) the ALJ erred in concluding at
step two of the sequential evaluation process that Plaintiff
did not have a severe physical impairment and (2) the ALJ
erred in concluding at step three that Plaintiff's
impairments did not meet the requirements of a Listing.
See Dkt. 20, Joint Stipulation (“JS”) at
4, 10-11, 13-17.
A. ALJ's Step-Two Finding
Hearing Testimony and ALJ Opinion
hearing, Plaintiff testified that he had hernia surgery that
“went well, but after a while it starts to get weak in
the area.” AR 36-37. His ability to sit was
“so-so” because his lower back started to hurt if
he sat for 3 or 4 hours. AR 36. He had “not much”
of an ability to lift things and experienced low-back pain
near the hernia repair site when he lifted items weighing
more than 50 pounds. Id. Plaintiff worked as a
kitchen aide for 3 or 4 hours every day, but was “not
sure” if he could do the job full time, because his
back started to hurt after “too long on [his]
feet.” AR 38. He could stand or walk for at least 4 out
of 8 hours, and “maybe” could ...