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Edmond v. Berryhill

United States District Court, C.D. California

July 6, 2017

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


          HONORABLE KENLY KIYA KATO United States Magistrate Judge

         Plaintiff 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. ///



         On 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.

         On June 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 15-32.

         On 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.

         On 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.



         Plaintiff 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 192.



         To 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).

         To 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.[2]
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 disabled.

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), 416.920(b)-(g)(1).

         The 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), 416.920(g)(1).


         A. STEP ONE

         At step 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.

         B. STEP TWO

         At step 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. ///

         C. STEP THREE

         At step 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.” Id.


         The ALJ 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.

         E. STEP FOUR

         At step 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. /// ///


         Plaintiff 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.


         Pursuant 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).

         “Substantial 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 record.”).

         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 ...

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