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May v. Berryhill

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

May 4, 2018

NICHOLE MAY, Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.

         I. PROCEEDINGS

         Plaintiff filed this action on June 1, 2017, seeking review of the Commissioner's denial of her application for Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before a Magistrate Judge on July 5, 2017, and July 28, 2017. Pursuant to the Court's Order, the parties filed a Joint Stipulation (alternatively “JS”) on March 14, 2018, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

         II. BACKGROUND

         Plaintiff was born on September 10, 1974. [Administrative Record (“AR”) at 32, 43, 62.] She has past relevant work experience as a receptionist, personal assistant/attendant, and cosmetic salesperson. [AR at 31-32, 56.]

         On July 9, 2013, plaintiff filed an application for SSI payments, alleging that she has been unable to work since July 29, 2012. [AR at 20.] After her application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [AR at 115-17.] A hearing was held on November 17, 2015, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 41-61.] A vocational expert (“VE”) also testified. [AR at 55-60.] On February 3, 2016, the ALJ issued a decision concluding that plaintiff was not under a disability since July 9, 2013, the date the application was filed. [AR at 20-33.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 15-16.] When the Appeals Council denied plaintiff's request for review on April 25, 2017 [AR at 1-6], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.

         III. STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

         “Substantial evidence means 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.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal quotation marks omitted)). The Court will “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.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”).

         IV. THE EVALUATION OF DISABILITY

         Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 U.S.C. § 423(d)(1)(A)).

         A. THE FIVE-STEP EVALUATION PROCESS

         The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled because there is other work existing in “significant numbers” in the national or regional economy the claimant can do, either (1) by the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Lounsburry, 468 F.3d at 1114. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since July 9, 2013, the application date. [AR at 22.] At step two, the ALJ concluded that plaintiff has the severe impairments of degenerative disc disease of the lumbar spine with radiculopathy; trochanteric bursitis; obesity; hypothyroidism; hypertension; major depressive disorder; post-traumatic stress disorder (“PTSD”); attention deficit disorder (“ADD”); panic disorder; cognitive impairment; and history of opiate dependence. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)[1] to perform sedentary work as defined in 20 C.F.R. § 416.967(a), [2] as follows:

[She] has the residual functional capacity to perform sedentary work . . . including lifting up to 5 pounds frequently and up to 10 pounds occasionally, sitting up to 6 hours total in an 8-hour workday, and standing/walking up to 2 hours total in an[] 8hour workday, with the following restrictions: she must avoid ladders, ropes and scaffolds as well as workplace hazards; she can only occasionally climb ramps and stairs; she can only occasionally balance, kneel, crouch, and crawl; she requires a one-minute break after one hour of being in any position; and she is limited to unskilled work with occasional public contact.

[AR at 24.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that plaintiff is unable to perform any of her past relevant work as a receptionist, personal assistant/attendant, and cosmetic salesperson. [AR at 31-32, 57.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as an “addresser” (Dictionary of Occupational Titles (“DOT”) No. 209.587-010), “bonder, electronics” (DOT No. 726.685-066), and “touch-up screener” (DOT No. 726.684-010). [AR at 32-33, 57-59.] Accordingly, the ALJ determined that plaintiff was not disabled at any time since July 9, 2013, the application date. [AR at 33.]

         V. THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when she: (1) discounted plaintiff's subjective symptom testimony and the testimony of lay witnesses; (2) assessed the medical evidence; (3) determined at step three of the sequential evaluation that plaintiff's mental and physical impairments or combination of impairments, did not meet or equal a listed impairment, including listings 12.02 and/or 12.05; and (4) committed harmful error at step five of the sequential evaluation because the occupation of “addresser” is obsolete, the occupation of touch up screener is not compatible with “unskilled” work, and none of the three occupations accommodates her need to take a one-minute break every hour. [JS at 3.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. SUBJECTIVE SYMPTOM TESTIMONY

         1. Legal Standard

         To determine the extent to which a claimant's symptom testimony must be credited, the Ninth Circuit has “established a two-step analysis.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison, 759 F.3d ...


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