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Caldera v. Commissioner of Social Security

United States District Court, E.D. California

August 31, 2017

NINOSKA CALDERA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINDINGS AND RECOMMENDATIONS

          CRAIG M. KELLIS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19).

         I. PROCEDURAL HISTORY

         Plaintiff applied for social security benefits on March 3, 2008. In the application, plaintiff claims that disability began on October 15, 2006. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on March 1, 2010, before Administrative Law Judge (“ALJ”) Robert C. Tronvig, Jr. In a June 30 2010, decision, the ALJ concluded that plaintiff is not disabled. After the Appeals Council denied review, plaintiff appealed. This court reversed and remanded, concluding that the ALJ erred in determining that plaintiff's bi-polar disorder was not severe. See Caldera v. Colvin, No. 2:12-CV-1301-EFB. A second hearing was held before the same ALJ on May 5, 2015. In a July 2, 2015, decision, the ALJ again concluded that plaintiff is not disabled based on the following relevant findings:

1. The case concerns a closed period through October 2010 when plaintiff began to engage in ongoing substantial gainful activity;
2. During the closed period, the claimant had the following impairment(s): psychosis with auditory hallucinations; bi-polar disorder; and anger management; and
3. During the closed period, the claimant did not have a severe impairment.

         After the Appeals Council declined further review, this appeal followed.

         II. STANDARD OF REVIEW

         The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

         III. DISCUSSION

         As with the prior appeal, this case concerns the ALJ's determination that plaintiff did not have any severe impairments during the closed period. In order to be entitled to benefits, the plaintiff must have an impairment severe enough to significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).[1] In determining whether a claimant's alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must consider the combined effect of all impairments on the ability to function, without regard to whether each impairment alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of impairments, can only be found to be non-severe if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. See Social Security Ruling (“SSR”) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id.

         In reaching the determination that plaintiff did not have a severe mental impairment during the closed period between October 2006 and October 2010, the ALJ noted the following evidence:

1. A May 16, 2008, report from examining agency physician, Dr. Canty, to whom plaintiff reported no mental health problems. Dr. Canty observed that plaintiff was well-groomed and had clear speech. Dr. Canty also noted that plaintiff was oriented, had an appropriate affect, and had a good fund of knowledge. Dr. Canty assigned a ...

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