United States District Court, S.D. California
ZSCAQULINE C. MASERANG, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 16, 19]
Mitchell D. Dembin, United States Magistrate Judge
Zscaquline C. Maserang (“Plaintiff”) filed this
action pursuant to 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of the Social
Security Administration (“Commissioner”) denying
Plaintiff's application for disability benefits under
Title II of the Social Security Act and supplemental security
income payments under Title XVI of the Social Security Act.
Plaintiff moves the Court for summary judgment reversing the
Commissioner and ordering an award of benefits, or, in the
alternative, to remand the case for further administrative
proceedings. (ECF No. 16). Defendant moved for summary
judgment affirming the denial of benefits. (ECF No. 19).
reasons expressed herein, the Court recommends that the case
be REMANDED to the ALJ for further
alleges that she became disabled on May 17, 2011. (A.R. 176,
182). Plaintiff's date of birth, November 2,
1973, categorizes her as a younger person on the alleged
disability onset date. 20 C.F.R. §§ 404.1563,
416.963; (A.R. 28).
January 17, 2013, Plaintiff filed an application for social
security disability insurance benefits, and on January 31,
2013, Plaintiff filed an application for supplemental
security income. (A.R. 21). Plaintiff had previously filed
for disability insurance benefits and supplementary security
income on November 5, 2008. (A.R. 62). Administrative Law
Judge (“ALJ”) David L. Wurzel denied those claims
on May 16, 2011. (A.R. 59-73). On December 13, 2011, the
Appeals Council denied Plaintiff's request for review of
the ALJ's decision. (A.R. 78).
January 2013 claims were initially denied on May 17, 2013,
and denied upon reconsideration on October 3, 2013.
(Id.). On September 19, 2014, Plaintiff appeared at
a hearing in San Diego, California, before ALJ Jay Levine.
(A.R. 36). Plaintiff and impartial vocational expert Harlan
S. Stock testified. (A.R. 21).
January 14, 2015, the ALJ issued a written decision finding
Plaintiff not disabled. (A.R. 21, 29). Plaintiff appealed,
and the Appeals Council declined to review the ALJ's
decision. (A.R. 1). Consequently, the ALJ's decision
became the final decision of the Commissioner.
August 18, 2016, Plaintiff filed a Complaint with this Court
seeking judicial review of the Commissioner's decision.
(ECF No. 1). On November 21, 2016, Defendant answered and
lodged the administrative record with the Court. (ECF Nos.
10, 11). On April 17, 2017, Plaintiff moved for summary
judgment. (ECF No. 16). On May 16, 2017, the Commissioner
cross-moved for summary judgment. (ECF No. 19). Plaintiff did
not reply to the Commissioner's response.
supplemental security income program provides benefits to
disabled persons without substantial resources and with
little income. 42 U.S.C. § 1382. To qualify, a claimant
must establish an inability to engage in “substantial
gainful activity” because of a “medically
determinable physical or mental impairment” that
“has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(A). The disabling impairment must be so severe
that, considering age, education, and work experience, the
claimant cannot engage in any kind of substantial gainful
work that exists in the national economy. 42 U.S.C. §
Commissioner makes this assessment through a process of up to
five steps. First, the claimant must not be engaged in
substantial, gainful activity. 20 C.F.R. § 416.920(b).
Second, the claimant must have a “severe”
impairment. 20 C.F.R. § 416.920(c). Third, the medical
evidence of the claimant's impairment is compared to a
list of impairments that are presumed severe enough to
preclude work. 20 C.F.R. § 416.920(d). If the
claimant's impairment meets or is equivalent to the
requirements for one of the listed impairments, benefits are
awarded. Id. If the claimant's impairment does
not meet or is not equivalent to the requirements of a listed
impairment, the analysis continues to a fourth and possibly
fifth step and considers the claimant's residual
functional capacity. At the fourth step, the claimant's
relevant work history is considered with the claimant's
residual functional capacity. If the claimant can perform the
claimant's past relevant work, benefits are denied. 20
C.F.R. § 416.920(e). At the fifth step, if the claimant
is found unable to perform the claimant's past relevant
work, the issue is whether the claimant can perform any other
work that exists in the national economy, considering the
claimant's age, education, work experience, and residual
functional capacity. If the claimant cannot do other work
that exists in the national economy, benefits are awarded. 20
C.F.R. § 416.920(f).
405(g) and 1383(c)(3) of the Social Security Act allow
unsuccessful applicants to seek judicial review of a final
agency decision of the Commissioner. 42 U.S.C. §§
405(g), 1383(c)(3). The scope of judicial review is limited
and the Commissioner's denial of benefits “will be
disturbed only if it is not supported by substantial evidence
or is based on legal error.” Brawner v. Secretary
of Health & Human Services, 839 F.2d 432, 433 (9th
Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528,
529 (9th Cir. 1986)).
evidence means “more than a mere scintilla” but
less than a preponderance. Sandqathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997). “[I]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting
Andrews v. Shalala 53 F.3d 1035, 1039 (9th Cir.
1995)). The court must consider the record as a whole,
weighing both the evidence that supports and detracts from
the Commissioner's conclusions. Desrosiers v.
Secretary of Health & Human Services, 846 F.2d 573,
576 (9th Cir. 1988). If the evidence supports more than one
rational interpretation, the court must uphold the ALJ's
decision. Allen v. Heckler, 749 F.2d 577, 579 (9th
Cir. 1984). When the evidence is inconclusive,
“questions of credibility and resolution of conflicts
in the testimony are functions solely of the
Secretary.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
has a special duty in social security cases to fully and
fairly develop the record in order to make an informed
decision on a claimant's entitlement to disability
benefits. DeLorme v. Sullivan, 924 F.2d 841, 849
(9th Cir. 1991). Because disability hearings are not
adversarial in nature, the ALJ must “inform himself [or
herself] about the facts relevant to his decision, ”
even if the claimant is represented by counsel. Id.
(quoting Heckler v. Campbell, 461 U.S. 458, 471 n.1
a reviewing court finds that substantial evidence supports
the ALJ's conclusions, the court must set aside the
decision if the ALJ failed to apply the proper legal
standards in weighing the evidence and reaching his or her
decision. Benitez v. Califano, 573 F.2d 653, 655
(9th Cir. 1978). Section 405(g) permits a court to enter a
judgment affirming, modifying or reversing the
Commissioner's decision. 42 U.S.C. § 405(g). The
reviewing court may also remand the matter to the Social
Security Administration for further proceedings. Id.
The ALJ's Decision
concluded Plaintiff was not disabled, as defined in the
Social Security Act, from May 17, 2011, through the date of
the ALJ's decision, January 14, 2015. (A.R. 29). The ALJ
also found Plaintiff did not show changed circumstances
sufficient to overcome the presumption of nondisability from
the previous ALJ decision on May 16, 2011. (A.R. 22).
found Plaintiff has the following severe impairments:
polyarthralgia; arthritis; chondromalacia patellar, bilateral
knees; fibromyalgia; obesity; degenerative disc disease
(“DDD”) and joint disease, lumbar and cervical
spine; and hypertension. (A.R. 24). The ALJ determined that
Plaintiff did not have an impairment or combination of
impairments meeting or medically equivalent to the severity
of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (A.R.
25). Specifically, the ALJ found that “[n]o treating or
examining physician has recorded findings equivalent in
severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are the same or
equivalent to those of any listed impairment of the Listing
of Impairments.” (Id.). The ALJ considered
listings 1.02, 1.03, 1.04, 4.00 and 14.09.
found that Plaintiff has the residual functional capacity
[P]erform light work . . . except [Plaintiff] can lift and/or
carry 20 pounds occasionally and 10 pounds frequently;
[Plaintiff] can stand and/or walk 2 hours in an 8-hour
workday, in ½ hour intervals; [Plaintiff] can sit 6
hours in an 8-hour workday; [Plaintiff] cannot push and/or
pull with either leg; [Plaintiff] cannot work around
unprotected heights, temperature extremes, and vibration;
[Plaintiff] cannot walk on uneven ground; [Plaintiff] cannot
climb ladders, but she can occasionally climb stairs and
ramps; [Plaintiff] can occasionally stoop and bend;
[Plaintiff] cannot balance; [Plaintiff] can perform frequent