United States District Court, C.D. California
KENNETH D. EDMOND, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
HONORABLE KENLY KIYA KATO United States Magistrate Judge
Kenneth D. Edmond (“Plaintiff”) seeks review of
the final decision of the Commissioner of the Social Security
Administration (“Commissioner” or
“Agency”) denying his application for Title II
Disability Insurance Benefits (“DIB”) and Title
XVI Supplemental Security Income Benefits
(“SSI”). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge, pursuant to 28 U.S.C. § 636(c). For the reasons
stated below, the Commissioner's decision is REVERSED and
this action is REMANDED for further proceedings consistent
with this Order. ///
September 14, 2012, Plaintiff filed applications for SSI and
DIB alleging a disability onset date of December 6, 2011 for
both. Administrative Record (“AR”) at 166-73.
Plaintiff's applications were denied initially on January
15, 2013, and upon reconsideration on May 14, 2013.
Id. at 98-103, 105-11.
11, 2013, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). Id. at
112-13. On January 29, 2014, Plaintiff appeared with counsel
and testified at a hearing before the assigned ALJ.
Id. at 33-53. A vocational expert (“VE”)
also testified at the hearing. Id. at 49-52. On
February 10, 2014, the ALJ issued a decision denying
Plaintiff's applications for DIB and SSI. Id. at
April 9, 2014, Plaintiff filed a request to the Agency's
Appeals Council to review the ALJ's decision.
Id. at 10-13. On August 26, 2015, the Appeals
Council denied Plaintiff's request for review.
Id. at 1-6.
October 21, 2015, Plaintiff filed the instant action. ECF
Docket No. (“Dkt.”) 1, Compl. This matter is
before the Court on the parties' Joint Stipulation
(“JS”), filed on May 30, 2017, which the Court
has taken under submission. Dkt. 31, JS.
was born on January 17, 1961 and his alleged disability onset
date is December 6, 2011. AR at 166, 168. He was forty-nine
years old on the alleged disability onset date and fifty-two
at the time of the hearing before the ALJ. Id. at
53, 166, 168. Plaintiff has completed two years of college
and has prior work experience as an auditor. Id. at
193. Plaintiff alleges disability based on numbness in both
arms and hand; stiffness in his neck and back; stomach pain
and cramps; swelling and pain in both legs. Id. at
FOR EVALUATING DISABILITY
qualify for DIB and SSI, a claimant must demonstrate a
medically determinable physical or mental impairment that
prevents him from engaging in substantial gainful activity,
and that is expected to result in death or to last for a
continuous period of at least twelve months. Reddick v.
Chater, 157 F.3d 715, 721 (9th Cir. 1998). The
impairment must render the claimant incapable of performing
the work he previously performed and incapable of performing
any other substantial gainful employment that exists in the
national economy. Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999).
decide if a claimant is disabled, and therefore entitled to
benefits, an ALJ conducts a five-step inquiry. 20 C.F.R.
§§ 404.1520, 416.920. The steps are:
1. Is the claimant presently engaged in substantial gainful
activity? If so, the claimant is found not disabled. If not,
proceed to step two.
2. Is the claimant's impairment severe? If not, the
claimant is found not disabled. If so, proceed to step three.
3. Does the claimant's impairment meet or equal one of
the specific impairments described in 20 C.F.R. Part 404,
Subpart P, Appendix 1? If so, the claimant is found disabled.
If not, proceed to step four.
4. Is the claimant capable of performing work he has done in
the past? If so, the claimant is found not disabled. If not,
proceed to step five.
5. Is the claimant able to do any other work? If not, the
claimant is found disabled. If so, the claimant is found not
See Tackett, 180 F.3d at 1098-99; see also
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.
2001); 20 C.F.R. §§ 404.1520(b)-(g)(1),
claimant has the burden of proof at steps one through four,
and the Commissioner has the burden of proof at step five.
Bustamante, 262 F.3d at 953-54. Additionally, the
ALJ has an affirmative duty to assist the claimant in
developing the record at every step of the inquiry.
Id. at 954. If, at step four, the claimant meets his
burden of establishing an inability to perform past work, the
Commissioner must show that the claimant can perform some
other work that exists in “significant numbers”
in the national economy, taking into account the
claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Tackett, 180 F.3d at 1098, 1100; Reddick,
157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1),
THE ALJ'S DECISION
one, the ALJ found Plaintiff “engaged in substantial
gainful activity during the following periods: December 2011
through March 2012 . . . However, there has been a continuous
12-month period(s) during which [Plaintiff] did not engage in
substantial gainful activity. The remaining findings address
the period(s) [Plaintiff] did not engage in substantial
gainful activity . . . from April 1, 2012, through the date
of this decision.” AR at 20-21.
two, the ALJ found Plaintiff “ha[d] the following
severe impairments: degenerative joint disease and
degenerative disc disease of the cervical spine; status-post
cervical fusion in June 2013; cervical radiculopathy;
hypertension; lumbago; degenerative narrowing at the lateral
joint compartment of the left knee; and mild osteopenia in
the right knee.” Id. at 21. ///
three, the ALJ found Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
found Plaintiff had the following RFC: to perform light work
as defined in 20 CFR 404.1567(b) and 416.97(b) except
[Plaintiff] can lift and/or carry 20 pounds occasionally and
10 pounds frequently: he can stand and/or walk for six hours
out of an eight-hour workday but no more than 15-20 minutes
at a time; he can sit for six hours out of an eight-hour
workday but with brief position changes after 1-2 hours; he
can occasionally perform postural activities; he cannot climb
ladders, ropes, or scaffolds; he cannot work at unprotected
heights, around moving machinery, or other hazards; he cannot
do overhead reaching or lifting bilaterally; he cannot do
repetitive or constant pushing and/or pulling with the lower
extremities, such as operating foot pedals; he cannot do
repetitive or constant fine manipulation bilaterally, but
frequent use is permissible; he cannot perform jobs that
require fast paced production or assembly line type work; and
he needs ready access to a restroom, meaning it needs to be
in the same building. Id. at 22.
four, the ALJ found Plaintiff “is capable of performing
past relevant work as an auditor.” Id. at 28.
The ALJ, therefore, found Plaintiff not disabled and did not
proceed to step five. Id. /// ///
presents one disputed issue: whether the ALJ failed to
articulate specific and legitimate reasons for rejecting
Plaintiff's testimony as not credible. JS at 5.
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. The ALJ's
findings and decision should be upheld if they are free of
legal error and supported by substantial evidence based on
the record as a whole. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971);
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
evidence” is evidence that a reasonable person might
accept as adequate to support a conclusion. Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is
more than a scintilla but less than a preponderance.
Id. To determine whether substantial evidence
supports a finding, the reviewing court “must review
the administrative record as a whole, weighing both the
evidence that supports and the evidence that detracts from
the Commissioner's conclusion.” Reddick,
157 F.3d at 720 (citation omitted); see also Hill v.
Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (stating
that a reviewing court “may not affirm simply by
isolating a ‘specific quantum of supporting
evidence'”) (citation omitted). “If the
evidence can reasonably support either affirming or
reversing, ” the reviewing court “may not
substitute its judgment” for that of the Commissioner.
Reddick, 157 F.3d at 720-21; see also Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“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
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 v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error
may only be considered harmless if it is “clear from
the record” that the error was “inconsequential