United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. KELLIS UNITED STATES MAGISTRATE JUDGE
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).
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
1. The case concerns a closed period through October 2010
when plaintiff began to engage in ongoing substantial gainful
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
the Appeals Council declined further review, this appeal
STANDARD OF REVIEW
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).
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). 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.
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
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 ...