United States District Court, C.D. California, Western Division
MEMORANDUM OPINION AND ORDER
L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.
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.
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.]
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.
STANDARD OF REVIEW
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).
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.”).
THE EVALUATION OF DISABILITY
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)).
THE FIVE-STEP EVALUATION PROCESS
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.
THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
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”) to perform sedentary work as defined in 20
C.F.R. § 416.967(a),  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.]
THE ALJ'S DECISION
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.
SUBJECTIVE SYMPTOM TESTIMONY
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 ...