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Robertson v. Berryhill

United States District Court, C.D. California, Western Division

November 21, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          JOHN 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.


         A. Standard of Review

         Under 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.

         “The 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).

         Lastly, 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).

         B. Standard for Determining Disability Benefits

         When 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).

         If the 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).

         The 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.


         Plaintiff 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.)

         On 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.

         At step 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.)

         On 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.


         The 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 ...

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