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Bechelli-Gonzalez v. Commissioner of Social Security Administration

United States District Court, N.D. California

February 22, 2018



          MARIA-ELENA JAMES, United States Magistrate Judge


         Plaintiff Teresa Bechelli-Gonzalez alleges she became disabled due to back pain that was caused by an injury she suffered in a car accident. She brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Commissioner of the Social Security Administration, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 21[1], 26. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (AR), and the relevant legal authority, the Court hereby GRANTS IN PART Plaintiff's motion and DENIES Defendant's cross-motion for the reasons set forth below.


         On May 7, 2013, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability beginning on February 22, 2012. AR 23, 130. The Social Security Administration (SSA) denied Plaintiff's claim, finding that Plaintiff did not qualify for disability benefits. AR 83- 87. Plaintiff subsequently filed a request for reconsideration, which the SSA also denied. AR 89-93. Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which was conducted before ALJ John Hayer on April 27, 2015. AR 38-56. Plaintiff testified in person at the hearing and was represented by counsel, Kevin LaPorte. The ALJ also heard testimony from Vocational Expert (VE) Harlan Stock.

         A. Plaintiff's Testimony

         Plaintiff worked as an office manager, legal secretary, and paralegal for approximately thirty years, until she was laid off from her firm in 2011. AR 41-42 (testifying she was laid off in April 2010); but see Reply at 5, Dkt. No. 27 (Plaintiff was laid off in 2011, not 2010); AR 134 (earning report showing Plaintiff earned $70, 500 in 2010, and $23, 600 in 2011 from the same law firm); AR 346 (August 14, 2012 doctor's consultation notes indicating “Patient has been off work for a year. She is a paralegal for Cartwright Law Firm”). Plaintiff looked for another job from that point until February 2012, when she was involved in a serious auto accident wherein she suffered an L1 compression fracture. AR 42. She stopped looking for work thereafter because she suffers from chronic back pain. Id.

         While Plaintiff has always had degenerative back disease, she had never broken her back before the car accident. AR 42-43. She was always able to work before her accident, despite pain. AR 43.

         Plaintiff can lift ten pounds, stand for 10-20 minutes, walk for up to 20-30 minutes, and can sit for 20 minutes before having to change positions. AR 43. These limitations change depending on the type of work she is performing; for example, if she is doing any type of computer work, she will develop sharp, stabbing pain, and can only perform that type of work for 10 minutes. Id.; see also AR 49-50 (extensive problems keyboarding and radiating pain when doing so; pain is grueling). She has tendonitis in her hand; while she used to type 110 words per minute but she cannot do so anymore. AR 50.

         On a typical day, Plaintiff wakes up at 7:00 or 8:00 a.m.; takes her medication, which takes up to an hour to become effective; takes a shower, which takes about an hour; vacuums and dusts for approximately an hour; goes to the grocery store to buy fresh fruits and vegetables every day; “cook[s] three practically fresh meals a day” since her husband had heart surgery in July [2015]; goes for a 20-30 minute walk with her husband and her dog; eats dinner, then usually goes to bed around 8:30 p.m. AR 44, 46. They may watch television at night, but she does not do so during the day. AR 45. Her son lives downstairs and carries up her laundry and groceries. AR 48. She has a housecleaner who comes once a month. AR 45.

         Her compression fracture hurts the most between 2:00 and 4:00 p.m.; she takes many breaks during that time. AR 44.

         At the time of the hearing, Plaintiff was taking a number of medications: morphine for pain, MS-Contin, Norco, Flexeril, an anti-inflammatory, Flector patches and cream, heart medication, and thyroid medication. AR 46-47. She takes valium for muscle spasms and anxiety. AR 47. These medications work in the morning, but by afternoon, she has to use ice packs and has stretch her back to relieve the pressure of her compression fracture; after a certain point in the afternoon, lying down is the only thing that helps. Id.; see also AR 51 (her best period of the day is until approximately 1:00, then she changes from “Dr. Jekyll to Mr. Hyde”). Some of her medications sometimes make her drowsy or lose concentration. AR 47. She needs to have written instructions because she will not remember conversations. AR 48, 50.

         Plaintiff was focused on her own physical rehabilitation, but she put that on hold when her husband had a heart attack. AR 44-45. She used to go to yoga and do her rehab at the gym, but she had done neither in the 8 months preceding the hearing. AR 45. Her doctors have recommended injections for the pain, and she may be a candidate for a new procedure. AR 49-50.

         Plaintiff likes to read, and she can use an iPad while sitting on the couch. AR 45. She rarely goes to movies, and cannot comfortably sit through a screening. AR 46.

         She stopped drinking in March 2014. AR 48.

         B. Vocational Expert's Testimony

         VE Stock testified that an individual who can lift 20 pounds, and can complete an 8-hour workday given an as-needed, sit-stand option, could not perform any of Plaintiff's past work as a paralegal, legal secretary, or office manager. AR 52-53. He testified such an individual could perform work as a pari-mutuel ticket seller and parking lot attendant, even eroding the national job numbers by 50% to account for the sit/stand at will option. AR 53-54.[2] He also testified such an individual could work as a toll collector, which was a sit/stand position. AR 54.

         If the same individual were off-task 20% of the day due to pain, she would not be able to return to Plaintiff's past work or perform any other type of job in the national economy. AR 54-55. If she could only occasionally reach, no more than 20% of the work day, she could neither return to her past work nor perform any other jobs. AR 55. If she could only stand for 4 hours out of an 8-hour day, she could not perform her past work, but she could work as a pari-mutuel ticket seller, parking lot attendant, and toll collector, because those positions have a sit/stand option. AR 55. But if the same person had to take unscheduled breaks every 45 minutes for 5 minutes at a time, she could not perform any work. AR 55. If she had to miss three days of work per month, she also could not perform any work. AR 55-56.

         C. The ALJ's Findings

         The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.[3] 20 C.F.R. § 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

         The ALJ must first determine whether the claimant is performing “substantial gainful activity, ” which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ determined that Plaintiff had not performed substantial gainful activity since February 22, 2012, the alleged onset date. AR 25.

         At step two, the ALJ must determine, based on medical findings, whether the claimant has a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, and status post L1 compression fracture. AR 25. The ALJ determined that Plaintiff suffers from other conditions, including hypothyroidism, hypertension, asymptomatic cholelithiasis and is status post left shoulder arthroscopy, but that the record does not document any symptoms, complaints, or functional limitations as a result of these other conditions. AR 25. Finally, the ALJ acknowledged Plaintiff's complaints of anxiety, but found no medical records establishing a diagnosis for this condition, and no medical signs or findings to substantiate the existence of a mental medically-determinable impairment. AR 25.

         If the ALJ determines that the claimant has a severe impairment, the process proceeds to the third step, where the ALJ must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the Listing of Impairments). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 25-26.

         Before proceeding to step four, the ALJ must determine the claimant's Residual Function Capacity (RFC). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff has the RFC to perform light work and can complete an eight-hour workday if given the option to alternate between sitting and standing, as needed, in 30-minute increments. AR 26-30.

         The fourth step of the evaluation process requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ determined that Plaintiff could not perform any past relevant work as a paralegal, legal secretary, or office manager. AR 30.

         In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the testimony of the vocational expert, Plaintiff's age, education, work experience, and RFC, the ALJ ...

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