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Delao v. Berryhill

United States District Court, C.D. California

November 6, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff Agustin Mendez Delao (“Plaintiff”) challenges the Commissioner's denial of his application for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). For the reasons stated below, the decision of the Commissioner is AFFIRMED.


         On August 31, 2012, Plaintiff filed an application for DIB and an application for SSI, both alleging disability beginning April 16, 2010. (Administrative Record (“AR”) 179, 183.) His applications were denied initially on February 7, 2013, and upon reconsideration on February 27, 2014. (AR 105, 115.) On March 27, 2014, Plaintiff filed a written request for hearing, and a hearing was held on March 4, 2015. (AR 9-30, 122.) Plaintiff appeared and testified without representation, along with an impartial vocational expert (“VE”). (AR 13-31.) On April 30, 2015, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a disability, pursuant to the Social Security Act, [1] since April 16, 2010. (AR 90-100.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (AR 1-4.) Plaintiff filed this action on October 24, 2016. (Dkt. No. 1.)

         The ALJ followed a five-step sequential evaluation process to assess whether Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 16, 2010, the alleged onset date (“AOD”). (AR 92.) At step two, the ALJ found that Plaintiff has the following severe impairments: cervical discogenic disease; lumbosacral discogenic disease; status post right shoulder arthroscopic rotator cuff repair, decompression, and acromioclavicular (AC) joint arthroplasty; status post left shoulder arthroscopic debridement; right wrist overuse syndrome; and left wrist overuse syndrome with ligament tear. (Id.) At step three, the ALJ found that 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.” (AR 94.)

         Before proceeding to step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to:

[P]erform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) specifically as follows: the claimant can lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for six hours out of an eight-hour workday; sit for six hours out of an eight-hour workday; frequently perform postural activities; occasionally climb ladders, ropes, or scaffolds; frequently walk on uneven terrain; occasionally perform above the shoulder work; and can speak very limited English.

(AR 94-95.)

         At step four, based on the Plaintiff's RFC and the VE's testimony, the ALJ found that Plaintiff is not capable of performing past relevant work as a welder. (AR 98-99.) At step five, “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, ” the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (AR 99.) Accordingly, the ALJ determined that Plaintiff has not been under a disability from the AOD through the date of the decision. (AR 100.)


         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. A court must affirm an ALJ's findings of fact if they are supported by substantial evidence, and if the proper legal standards were applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial evidence requirement “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

         “[T]he Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and internal quotation marks omitted). “‘Where evidence is susceptible to more than one rational interpretation, ' the ALJ's decision should be upheld.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the evidence can support either affirming or reversing the ALJ's conclusion, we may not substitute our judgment for that of the ALJ.”). The Court may review only “the reasons provided by the ALJ in the disability determination 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) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).


         Plaintiff raises three issues for review: (1) whether the ALJ properly assessed Plaintiff's RFC; (2) whether the ALJ posed a complete hypothetical question to the VE; and (3) whether the ALJ properly considered Plaintiff's subjective complaints and erred in finding them not credible. (Joint Stipulation (“JS”) 3, Dkt. No. 18.) Plaintiff contends that the ALJ failed to take into account Plaintiff's severe wrist impairments when assessing Plaintiff's RFC, failed to include all of Plaintiff's limitations in the hypothetical posed to the VE, and failed to properly credit Plaintiff's testimony. (See JS 4-5, 8-9, 11-15.) The Commissioner contends that the RFC is supported by the record, the question posed to the VE contained all of Plaintiff's credible limitations, and Plaintiff's credibility was correctly discounted. (JS 7, 9, 15-19.) For the reasons below, the Court agrees with the Commissioner.

         A. The ALJ's Credibility Determination Is Supported By Substantial Evidence [2]

         Plaintiff argues that the ALJ failed to provide clear and convincing reasons to reject Plaintiff's testimony. (JS 16.) The Commissioner argues that the ALJ's reasons for finding Plaintiff not fully credible are clear and convincing, supported by substantial evidence. (JS 17-19.)

         1. Plaintiff's Testimony

         Plaintiff testified with the help of a Spanish-language interpreter. (See AR 13-14.) Plaintiff testified that he was 52 years old and had completed sixth grade. (AR 15.) He can read and write in Spanish, but “[n]ot much” in English. (Id.) Plaintiff testified that he worked as a welder for eight or nine years. (AR 18.) At that job, he lifted 80 to 100 pounds. (AR 20.) Plaintiff later testified that he “didn't have to lift anything” while welding, but he sometimes moved things that weighed over 50 pounds. (AR 21.)

         Plaintiff testified that his last job as carpenter lasted for one month during the previous year. (AR 18-19.) He helped to build the frame for a Wal-Mart store. (AR 19-20.) Plaintiff testified that he had to lift plywood to cut it with a skill saw, but he never had to lift more than 10 pounds. (AR 20.) Plaintiff testified he broke his left thumb, or a tendon in his left hand, while at that job. (AR 19.) Before that injury, he could lift 10 to 15 pounds on his left side. (AR 23.)

         Plaintiff testified that he cannot work now due to arthritis in his wrists. (AR 21.) Plaintiff had surgery on both shoulders in 2011 and is “still not doing well off of that.” (AR 21-22.) Plaintiff testified that the surgeries provided “[v]ery little help.” (AR 22.) Plaintiff testified that he has problems sleeping, and when he lies “to one side or the other side, it helps-it causes [him] pain on both shoulders.” (Id.) Plaintiff testified that he has problems lifting things. (Id.) He also testified that he has “a lot of pain on the nerve system of [his] neck.” (Id.)

         Plaintiff testified that before a February 10, 2010 injury, he could lift 80 to 100 pounds. (AR 23.) Since then, he has not been lifting anything and has not been working. (Id.) Plaintiff testified that he could lift about 10 to 15 pounds now, but he could not lift overhead due to his shoulders. (AR 23-24.) Plaintiff testified that he would lift to the top of his head, “but with pain on [his] shoulders and on [his] neck.” (AR 24.)

         Plaintiff testified that he has arthritis in his ankles, and he has trouble walking because his ankles hurt “very much.” (AR 22, 24.) He also testified that he has two bad discs that are shifted in his lower back. (AR 22.) Plaintiff testified that he has pain in his back when he sits for a long time. (AR 24.) He can sit for only a half an hour, “if that much.” (Id.) Plaintiff testified that he can be on his feet for only 20 or 30 minutes at a time, and he needs to be walking or moving. (Id.) Plaintiff testified that he “hardly walk[s], ” but when he does, he walks no more than a half of a block because he starts to have lower back pain on his left side. (Id.)

         Plaintiff testified that he could not walk for even two hours off and on during an eight-hour period, and he has been that restricted since 2010. (AR 24-25.) Plaintiff then testified that he was on his feet all day during his one-month, fulltime carpenter job the prior year. (AR 25.) He explained that the job consisted of standing up and leaning on a table to cut wood. (Id.) He also used a forklift. (AR 26.) Plaintiff testified that it was a “trial” job that lasted a month and a half. (Id.)

         2. Applicable Legal Standards

         “In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the ALJ does not find evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting a claimant's testimony regarding the severity of his symptoms. Id. The ALJ must identify what testimony was found not credible and explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 834.

         3. ...

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