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Oxley v. Berryhill

United States District Court, C.D. California

June 15, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          JOHN D. EARLY, United States Magistrate Judge



         On August 31, 2016, Plaintiff Laura Brown Oxley (“Plaintiff”) filed a Complaint seeking review of the Commissioner's denial of her application for Disability Insurance Benefits (“DIB”). (Dkt. No. 1.) The parties filed Consents to proceed before the undersigned Magistrate Judge on March 3, 2017 and March 6, 2017. (Dkt. Nos. 11, 12, 18, 19.) On March 10, 2017, the parties filed a Joint Stipulation (“Jt. Stip.”) that addresses their positions concerning disputed issues in the case (Dkt. 17) and the Court now rules based upon the Complaint, the Joint Stipulation and the Administrative Record (“AR”) as set forth in the Case Management Order (Dkt. 9).



         Plaintiff was born on May 10, 1957. (Administrative Record, Volume 1 (“1AR”) 944.) On May 19, 2008, Plaintiff filed an application for disability benefits, alleging a disability beginning May 26, 2007, after she suffered a stroke. (1AR 199-201, 202-05.) After her application was denied initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge (“first ALJ”) on December 5, 2008. (1AR 76-79, 85-89, 90-91.) The first ALJ held a hearing on October 28, 2010. (1AR 41.) On November 19, 2010, the first ALJ issued a decision concluding Plaintiff was not under a disability. (1AR 38-52.)

         The Appeals Council granted Plaintiff's request for review and remanded the matter on May 11, 2012, after which a second ALJ concluded Plaintiff was not under a disability. (1AR 53-54, 56-75.) On May 19, 2014, Plaintiff filed a Complaint with the Court challenging the Commissioner's decision denying her application for disability benefits. (2AR 976-82.) On May 29, 2015, the prior magistrate judge remanded the matter for further administrative proceedings finding, inter alia, that the ALJ's adverse credibility determination was inadequately supported because: (1) “the [ALJ] did not identify which [of the Plaintiff's] daily activities contradicted which testimony”; and (2) “the [ALJ] failed to explain what objective medical evidence detracted from the severity of Plaintiff's symptoms.” (2AR 967-68.)

         On May 17, 2016, a third ALJ conducted the remand hearing on April 7, 2016, again denying benefits. (2AR 917-36.) This action followed.



          The ALJ calculated that Plaintiff met the special earnings requirements for a period of disability and disability insurance benefits through December 31, 2012. (2AR 922.) The ALJ then used the five-step sequential evaluation process to guide his decision. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 24, 2007.[2] (2AR 923.) At step two, the ALJ concluded that Plaintiff has the severe impairments of status post ischemic stroke and cognitive disorder. (2AR 923.) At step three, the ALJ decided that the impairment did not meet or equal any “listed impairment.” (2AR 924.) The ALJ further found that, through her date last insured, Plaintiff retained the residual functional capacity (“RFC”)[3] to perform the demands of a full range of work at all exertional levels, but with the following non-exertional limits:

The claimant can perform unskilled, simple tasks. She is precluded from fast-paced work (such as on an assembly line or fast food work at the lunch hour), and no repetitive, complex, or extended reading, writing, or mathematical calculations.

(2AR 924.)

         At step four, based on the testimony of a vocational expert (“VE”), the ALJ concluded that Plaintiff is unable to perform any of her past relevant work as a personnel clerk. (2AR 928.)

         The ALJ classified Plaintiff as an individual closely approaching advanced age, on the date last insured, noting that Plaintiff subsequently changed age category to advanced age. (2AR 928.) At step five, based on Plaintiff's RFC vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that Plaintiff can perform, including work as a “linen room attendant” (Dictionary of Occupational Titles (“DOT”) No. 222.387-030), “marker” (DOT No. 369.687-026), and “day worker” (DOT No. 301.687-014). (2AR 929-30.) Accordingly, the ALJ determined that Plaintiff was not disabled during the relevant period from May 26, 2007 and the date last insured of December 31, 2012. (2AR 930.)



         Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of no less than twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). In assessing disability claims, the ALJ conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing, inter alia, 20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant is currently working in substantial gainful activity. Id. If not, the ALJ proceeds to a second step to determine whether the claimant has a “severe” medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months. Id. If so, the ALJ proceeds to a third step to determine whether the claimant's impairments render the claimant disabled because they “meet or equal” any one of the “listed impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015).

         If the claimant's impairments do not meet or equal a “listed impairment, ” before proceeding to the fourth step, the ALJ assesses the claimant's RFC. 20 C.F.R. § 416.920(d), 416.945; Social Security Ruling (“SSR”) 96-8p. After determining the claimant's RFC, the ALJ determines at the fourth step whether the claimant has the RFC to perform past relevant work, either as she actually performed it or as it is generally performed in the national economy. 20 C.F.R. § 416.920(f). If the claimant cannot perform her past relevant work, the ALJ proceeds to a fifth and final step to determine whether there is any other work, in light of the claimant's RFC, age, education, and work experience, that the claimant can perform and that exists in “significant numbers” in either the national or regional economies. 20 C.F.R. § 416.920(g); Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not disabled; but if the claimant cannot do other work and meets the duration requirement, the claimant is disabled. Tackett, 180 F.3d at 1099.

         The claimant generally bears the burden at each of steps one through four to show that she is disabled or that she meets the requirements to proceed to the next step, and the claimant bears the ultimate burden to show that she is disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). However, at step five, the ALJ has a “limited” burden of production to identify representative jobs that the claimant can perform and that exist in “significant” numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision denying benefits to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted).

         Although courts will not substitute their discretion for the Commissioner's, courts nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.” Molina, 674 F.3d at 1110; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (court will uphold decision when evidence is susceptible to more than one rational interpretation). However, a court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

         Lastly, even when legal error is found, the reviewing court will still uphold the decision if the error was harmless, that is, where it is inconsequential to the ultimate non-disability determination, or where, despite the error, the Commissioner's path “may reasonably be discerned, ” even if the Commissioner explains her decision “with less than ideal ...

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