United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT, RE:
DKT. NOS. 21, 26
MARIA-ELENA JAMES, United States Magistrate Judge
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, 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.
SECURITY ADMINISTRATION PROCEEDINGS
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.
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.
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
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
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 ; 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.
compression fracture hurts the most between 2:00 and 4:00
p.m.; she takes many breaks during that time. AR 44.
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.
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.
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.
stopped drinking in March 2014. AR 48.
Vocational Expert's Testimony
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. He also testified
such an individual could work as a toll collector, which was
a sit/stand position. AR 54.
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.
The ALJ's Findings
regulations promulgated by the Commissioner of Social
Security provide for a five-step sequential analysis to
determine whether a Social Security claimant is
disabled. 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
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.
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.
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.
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.
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.
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