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Pina v. Berryhill

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

May 23, 2018

SUSAN PINA, Plaintiff,
v.
NANCY BERRYHILL, DEPUTY COMMISSIONER OF OPERATIONS, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE

         I.

         PROCEEDINGS

         Plaintiff filed this action on June 8, 2017, seeking review of the Commissioner's[1] denial of her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before a Magistrate Judge on June 27, 2017, and July 13, 2017. Pursuant to the Court's Order, the parties filed a “corrected” Joint Submission (alternatively “JS”) on March 27, 2018, that addresses their positions concerning the disputed issues in the case. [ECF No. 24.] The Court has taken the Joint Submission under submission without oral argument.

         II.

         BACKGROUND

         Plaintiff was born on March 4, 1972. [Administrative Record (“AR”) at 19, 117, 123.] She has past relevant work experience as a child care worker, warehouse worker, and automobile salesperson. [AR at 330, 371.]

         On June 7, 2010, plaintiff filed an application for a period of disability and DIB, and an application for SSI payments, alleging that she has been unable to work since July 19, 2009. [AR at 9, 117, 123.] After her applications were denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [AR at 69-70.] A hearing was held on May 22, 2012, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 26-47.] A vocational expert (“VE”) also testified. [AR at 44-45.] On June 7, 2012, the ALJ issued a decision concluding that plaintiff was not under a disability from July 19, 2009, the alleged onset date, through June 7, 2012, the date of the decision. [AR at 9-21.] Plaintiff requested review of the ALJ's decision by the Appeals Council, which the Appeals Council denied on August 7, 2013. [AR at 1-3.] Plaintiff then filed an action with this Court in case number ED CV 13-1806-PLA and, on July 28, 2014, this Court remanded the matter. [AR at 380-99; see also id. at 377-79 (Appeals Council Remand Order).] On July 22, 2015, a remand hearing was held before a different ALJ, at which time plaintiff again appeared represented by an attorney and testified on her own behalf. [AR at 345-76.] A different VE also testified. [AR at 368-74.] On September 24, 2015, the ALJ issued a decision concluding that from July 19, 2009, through July 31, 2010, plaintiff was disabled, but that medical improvement occurred beginning August 1, 2010. [AR at 322-39.] Plaintiff filed exceptions to the decision with the Appeals Council [AR at 293-96], which were denied on April 5, 2017, with a statement that the ALJ's September 24, 2015, decision was the final decision of the Commissioner after remand from the Court. [AR at 290-91.] 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

         The ALJ noted that pursuant to the Court's remand order, the ALJ on remand was instructed to reconsider the opinions of plaintiff's treating doctor, James Evans, M.D., explain the weight afforded to each medical opinion with legally adequate reasons for any portion of the opinion(s) the ALJ rejects, reevaluate the third-party function report, re-assess plaintiff's RFC, and determine at step five, with the assistance of a VE, if necessary, whether plaintiff is capable of performing other work existing in significant numbers in the economy. [AR at 322.]

         On remand, at step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since July 19, 2009, the alleged onset date.[2] [AR at 326.] At step two, the ALJ concluded that from July 19, 2009, through July 31, 2010, plaintiff was disabled with the following severe impairments: multilevel degenerative disc disease of the lumbar spine without spinal cord compromise; mild bilateral neural foraminal narrowing at ¶ 5-S1; small posterior disc margin annular tear at ¶ 4-L5; and obesity. [Id.] The ALJ also found that plaintiff's medically determinable mental impairments of depressive disorder and anxiety disorder did not limit her ability to perform basic mental work activities and were nonsevere from July 19, 2009, through July 31, 2010. [Id.] At step three, the ALJ determined that from July 19, 2009, through July 31, 2010, plaintiff did not have an impairment or a combination of impairments that met or medically equaled any of the impairments in the Listing. [AR at 327.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)[3] to perform less than the full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), [4] as follows:

[She] could lift or carry a maximum of five pounds; [she] could not push or pull; [she] could stand a maximum of one hour at a time; [she] would require a cane for ambulation; and [she] could perform postural activities on a less than occasional basis.

[AR at 328.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that from July 19, 2009, through July 31, 2010, plaintiff was unable to perform any of her past relevant work as a child care worker, warehouse worker, or automobile salesperson. [AR at 330.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there were no are jobs existing in significant numbers in the national economy that plaintiff could have performed. [AR at 331.] Accordingly, the ALJ determined that plaintiff was under a disability from July 19, 2009, through July 31, 2010. [Id.]

         The ALJ also determined that beginning August 1, 2010, the date he found that plaintiff's disability ended, plaintiff had the severe impairments of multilevel degenerative disc disease of the lumbar spine without spinal canal compromise; lumbar strain; lumbar radiculitis; obesity; depressive disorder; and anxiety disorder. [AR at 331-32.] The ALJ also found that beginning August 1, 2010, plaintiff did not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing and that although she still had back problems, “her treatments became generally routine in nature with somewhat normal examination findings and no objective clinical findings supporting her allegations of disabling symptoms.” [AR at 332.] The ALJ further found that the medical improvement that occurred as of August 1, 2010, is related to plaintiff's ability to work “because there has been an increase in [her] residual functional capacity” and she can perform less than the full range of light[5] work, as follows:

[She] can lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; [she] can stand and/or walk six hours out of an eight-hour workday; [she] can sit six hours out of an eight-hour workday; [she] can perform postural activities, such as climbing, balancing, stooping, kneeling, crouching, and crawling, on an occasional basis, but [she] cannot squat or climb ladders, ropes, or scaffolds; [she] must avoid excessive vibration; [she] must avoid hazardous machinery and unprotected heights; [she] would need a can[e] if outside of the immediate work area; and [she] is limited to simple and routine work due to depression and anxiety.

[AR at 332-33.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that beginning August 1, 2010, plaintiff was still unable to perform any of her past relevant work. [AR at 337.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there were jobs existing in significant numbers in the national economy that plaintiff can perform, including work as an “information clerk” (Dictionary of Occupational Titles (“DOT”) 237.367-046), “charge account clerk” (DOT No. 205.367-014), and “bench assembler, ...


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