United States District Court, C.D. California, Western Division
JANET B. ROBERTSON, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
D. EARLY United States Magistrate Judge
Plaintiff Janet B. Robertson (“Plaintiff ”) filed
a complaint on January 24, 2017, seeking review of the denial
of her application for Disability Insurance Benefits
(“DIB”) by the Commissioner of Social Security
(“Commissioner”). Pursuant to consents of the
parties, the case has been assigned to the undersigned
Magistrate Judge for all purposes. (Dkt. Nos. 12-14.)
Consistent with the Order Re: Procedures in Social Security
Appeal (Dkt. No. 5), on September 29, 2017, the parties filed
a Joint Stipulation addressing their respective positions.
(Dkt. No. 19 (“Jt. Stip.”).) The Court has taken
the Joint Stipulation under submission without oral argument
and as such, this matter is now ready for decision.
Standard of Review
42 U.S.C. § 405(g), this Court reviews the
Commissioner's decision denying benefits to determine
whether it is free from legal error and supported by
substantial evidence in the record as a whole. Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
“Substantial evidence” is “more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Gutierrez v. Comm'r of
Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014)
(citations and internal punctuation omitted). The standard of
review of a decision by an Administrative Law Judge
(“ALJ”) is “highly deferential.”
Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996,
1002 (9th Cir. 2015) (citation omitted). 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 (“SSA”) for
further proceedings. Id.
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and for resolving
ambiguities.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995). Although this Court cannot
substitute its discretion for the Commissioner's, the
Court nonetheless must review the record as a whole,
“weighing both the evidence that supports and the
evidence that detracts from the [Commissioner's]
conclusion.” Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (internal quotation marks and
citation omitted). “Even when the evidence is
susceptible to more than one rational interpretation, we must
uphold the ALJ's findings if they are supported by
inferences reasonably drawn from the record.”
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); see also Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005) (court will uphold Commissioner's
decision when evidence is susceptible to more than one
rational interpretation). However, the Court may only review
the reasons provided by the ALJ in the disability
determination, and may not affirm the ALJ on a ground upon
which the ALJ did not rely. Garrison v. Colvin, 759
F.3d 995, 1010 (9th Cir. 2014) (citation omitted); see
also Orn, 495 F.3d at 630 (citation omitted).
even if an ALJ erred, a reviewing court will still uphold the
decision if the error was inconsequential to the ultimate
non-disability determination, or where, despite the error,
the ALJ's path “may reasonably be discerned,
” even if the ALJ explained the decision “with
less than ideal clarity.” Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations,
internal punctuation omitted).
Standard for Determining Disability Benefits
the claimant's case has proceeded to consideration by an
ALJ, the ALJ conducts a five-step sequential evaluation to
determine at each step if the claimant is or is not disabled.
See Molina, 674 F.3d at 1110 (citing, inter
alia, 20 C.F.R. §§ 404.1520(a), 416.920(a)).
First, the ALJ considers whether the claimant currently
performs “substantial gainful activity.”
Id. If not, the ALJ proceeds to a second step to
determine if the claimant has a “severe”
medically determinable physical or mental impairment or
combination of impairments that has lasted for more than 12
months. Id. If so, the ALJ proceeds to a third step
to determine if the claimant's impairments render the
claimant disabled because they “meet or equal”
any of the “listed impairments” set forth in the
Social Security regulations. See Rounds, 807 F.3d at
1001. If the claimant's impairments do not meet or equal
a “listed impairment, ” before proceeding to the
fourth step, the ALJ assesses the claimant's residual
functional capacity (“RFC”), that is, what the
claimant can do on a sustained basis despite the limitations
from her impairments. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); Social Security Ruling
(“SSR”) 96-8p. After determining the
claimant's RFC, the ALJ proceeds to the fourth step and
determines whether the claimant has the RFC to perform her
past relevant work, either as she performed it when she
worked in the past, or as that same job is generally
performed in the national economy. See Stacy v.
Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing,
inter alia, SSR 82-61); see also 20 C.F.R.
§§ 404.1560(b), 416.960(b).
claimant cannot perform her past relevant work, the ALJ
proceeds to a fifth and final step to determine whether there
is any other work, in light of the claimant's RFC, age,
education, and work experience, that the claimant can perform
and that exists in “significant numbers” in
either the national or regional economies. See 20
C.F.R. §§ 404.1520(g), 416.920(g); Tackett v.
Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the
claimant can do other work, she is not disabled; if the
claimant cannot do other work and meets the duration
requirement, the claimant is disabled. See Tackett,
180 F.3d at 1099 (citing 20 C.F.R. § 404.1560(b)(3));
see also 20 C.F.R. § 416.960(b)(3).
claimant generally bears the burden at each of steps one
through four to show that she is disabled or that she meets
the requirements to proceed to the next step; the claimant
bears the ultimate burden to show that she is disabled.
See, e.g., Molina, 674 F.3d at 1110;
Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.
1995). However, at step five, the ALJ has a
“limited” burden of production to identify
representative jobs that the claimant can perform and that
exist in “significant” numbers in the economy.
See 20 C.F.R. §§ 404.1560(c)(1)-(2),
416.960(c)(1)-(2); Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.
BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
was born on October 2, 1956. (Administrative Record
(“AR”) 68.) On March 6, 2014, Plaintiff filed a
Title II application for DIB benefits claiming disability
beginning January 13, 2014. (AR 24, 67.) After her
application was denied initially and upon reconsideration (AR
104-19, 121-34), Plaintiff requested an administrative
hearing. (AR 151-54.) Plaintiff, represented by counsel,
appeared and testified at the hearing before the ALJ on
August 27, 2015. (AR 64-103.)
September 25, 2015, the ALJ returned an unfavorable decision.
(AR 21-37.) At step one of the sequential evaluation, the ALJ
found no substantial gainful activity since the alleged onset
date. (AR 26.) At step two, the ALJ determined that Plaintiff
had the following severe impairments: “disc disease of
the cervical spine, status post-surgery; disc disease of the
lumbar spine, status post-surgery; osteoarthritis of the left
knee; history of bilateral carpal tunnel syndrome, status
post right thumb surgery; and asthma.” (Id.)
At step three, the ALJ found that none of these impairments
or combination of impairments met or equaled a listed
impairment. (AR 28.) Next, the ALJ found that Plaintiff had
the RFC to perform a range of light work, further limited as
follows (AR 28):
The [Plaintiff] can lift and/or carry 20 pounds occasionally
and 10 pounds frequently; she can stand and/or walk for six
hours out of an eight-hour workday; she can sit for six hours
out of an eight-hour workday; she can perform frequent
pushing and pulling with the upper extremities; she cannot
climb ladders, rope, or scaffolds; she can occasionally climb
ramps and stairs; she cannot crawl; she can occasionally
balance, stoop, kneel, and crouch; she cannot perform
overhead reaching bilaterally; she can perform all other
reaching frequently; she can perform frequent handling,
fingering, and feeling bilaterally; the [Plaintiff] should
avoid all exposure to vibration and hazards; and she should
avoid concentrated exposure to fumes, odors, dusts, gases,
and poor ventilation.
four, the ALJ found that Plaintiff was able to perform her
past relevant work as: a medical records clerk (Dictionary of
Occupational Titles (“DOT”) 079.262-014);
receptionist (DOT 237.367-038); and insurance specialist (DOT
079.262-010) as she actually performed it and as generally
performed in the national economy. (AR 31-2.) As a result,
the ALJ concluded that Plaintiff was not disabled from the
alleged onset date through the date of the decision. (AR 24.)
October 19, 2015, Plaintiff filed a request with the Appeals
Council for review of the ALJ's decision. (AR 16-20.) On
December 15, 2016, the Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the
Commissioner's final decision. (AR 1-7.) Plaintiff then
commenced this action.
parties present three disputed issues (Jt. Stip. at 2-3.):
Issue No. 1: The ALJ erred in failing to set forth
requisite clear and convincing reasons for rejecting the
opinion of treating source Dr. Massoudi
Issue No. 2: The ALJ erred in failing to properly
evaluate Plaintiff's subjective complaints and