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Avila v. Commissioner of Social Security

United States District Court, E.D. California

July 6, 2017

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



         Plaintiff Lorraine Avila seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to the Honorable Erica P. Grosjean, United States Magistrate Judge.[2]


         Plaintiff was 51 years old at the time of her hearing before the Social Security Administration. AR 38. She completed her education through the eleventh grade, but does not have a GED or any vocational training. AR 42. Plaintiff most recently worked as a housekeeper and waitress in 2010 but left after working caused her hands to “swell[ ] up.” AR 43. Plaintiff is 5'7” and weighs 211 pounds. AR 39. She lives in a house with her husband and two Chihuahuas. AR 39. Her daily activities include walking around her neighborhood, watching TV, and napping. AR 57-58.

         Plaintiff's alleged conditions are pain and numbness in her neck, left shoulder, arm, hand, and middle fingers. AR 216. On March 30, 2012, Plaintiff filed an application for disability insurance benefits under Title II, alleging a disability beginning on December 4, 2008. AR 185-188. The application was denied initially on November 5, 2012 and on reconsideration on May 6, 2013. AR 121-125, 132-137. Plaintiff filed a request for a hearing on May 14, 2013. AR 138-139. The hearing was then conducted before Administrative Law Judge Cynthia Floyd (the “ALJ”) on July 2, 2014. AR 27-46. On August 29, 2014, the ALJ issued an unfavorable decision determining that Plaintiff was not disabled. AR 27. Plaintiff filed an appeal of this decision with the Appeals Council. The Appeals Council denied the appeal, rendering the ALJ's order the final decision of the Commissioner. AR 1-6.

         Plaintiff now challenges that decision, arguing that: (1) The ALJ failed to obtain an explanation for the vocational expert's deviation from the Dictionary of Occupational Titles (“DOT”); (2) the ALJ incorrectly found Plaintiff not credible; and, (3) the ALJ rejected the opinion of treating physician Jacqueline De Castro.

         Defendant contests Plaintiff's assessment, pointing out that: (1) The ALJ was within her discretion to erode the number of positions available in the national economy to account for any deviations from the DOT; (2) clear and convincing evidence in the record demonstrated that Plaintiff was not credible; and, (3) the ALJ correctly rejected Dr. De Castro's opinion because it was inconsistent with her own notes and with other medical evidence in the record.


         To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

. . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

         To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. § 404.1520(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must consider objective medical evidence and opinion testimony. 20 C.F.R. § 404.1527, 404.1529.

         Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability; (2) whether the claimant had medically-determinable “severe” impairments;[4] (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant retained the residual functional capacity (“RFC”) to perform her past relevant work;[5] and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the regional and national level. 20 C.F.R. § 404.1520(a)-(f).

         Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 19-27. In particular, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 4, 2008, the date specified in her application. AR 21. Further, the ALJ identified status post C5-C7 anterior plate and screw fusion/fixation; central canal stenosis at ¶ 5-C6 and C6-C7; cervical spondylotic myelopathy; cervical spondylosis; cervical spinal cord nerve root compression; and hip bursitis as a medically determinable combination of impairments. AR 21. Nonetheless, the ALJ determined that the severity of Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 22.

         Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to:

[L]ift and carry up to 20 pounds occasionally and up to 10 pounds frequently, stand and walk up to six hours, and sit up to six hours in an eight-hour workday. She can frequently balance and crouch, and occasionally stoop, kneel, crawl, and climb ramps or stairs, but should never climb ladders, ropes, or scaffolds. The claimant is also limited to occasionally reaching overhead bilaterally. She is further limited to occasionally handling, fingering, and feeling with the left upper extremity, but can frequently perform these tasks with the right upper extremity. The claimant is capable of performing tasks which do not require repetitive rotation, extension, or flexion of the neck and she must avoid concentrated exposure to extreme temperatures, wetness, humidity, vibrations, and such workplace hazards as fast unprotected moving machinery, unprotected heights, and uneven or slippery terrain.

AR 22. Plaintiff was not capable of performing her past relevant work. AR 25. Plaintiff could, however, perform work as a cashier, information clerk, or parking lot attendant, jobs that exist in significant numbers in the national economy. AR 26.


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

         “Substantial evidence means more than a scintilla but less than a preponderance.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. “Where the evidence is susceptible to more than one rational ...

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