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Cruz Ramirez v. Berryhill

United States District Court, C.D. California

May 25, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff filed a Complaint on March 9, 2017, seeking review of the denial of his application for a period of disability and disability insurance benefits (“DIB”). (Dkt. No. 1.) On March 13, 2017 and April 12, 2017, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 7, 12, 13.) On October 23, 2017, the parties filed a Joint Stipulation (“Joint Stip.”) (Dkt. No. 19) in which Plaintiff seeks an order reversing the Commissioner's decision and “an outright award of benefits” or, in the alternative, a remand for further administrative proceedings (Joint Stip. at 43). The Commissioner requests that the ALJ's decision be affirmed or remanded for further proceedings. (Id.)

         On November 6, 2017, Plaintiff filed a Request to Supplement Record with New and Material Evidence (“Request to Supplement”). (Dkt. No. 21.) The Request to Supplement attached a Notice of Award dated October 29, 2017 that found Plaintiff disabled as of December 8, 2015 based on a subsequent disability application that Plaintiff filed. (Id. at 2.) On December 19, 2017, Defendant filed an Opposition to Plaintiff's Request to Supplement. (Dkt. No. 23.) On January 17, 2018, the Court issued an Order that granted in part and denied in part the Request to Supplement. (Dkt. No. 24.) The Court granted Plaintiff's request to supplement the record with the 2017 Notice of Award, but declined to grant remand based solely on the fact of the 2017 Notice of Award. (Id. at 4.)

         The issues are now fully briefed and the Court has taken the matter under submission without oral argument.


         Plaintiff filed an application for disability benefits on August 30, 2013 in which he alleged disability commencing January 22, 2012. (Administrative Record (“AR”) 161-162.) The claim was denied initially on March 20, 2014 and upon reconsideration on July 16, 2014. (AR 18.) Petitioner filed a written request for a hearing before an Administrative Law Judge (“ALJ”). (Id.) Following the hearing held on September 1, 2015, ALJ Joan Ho issued an adverse decision denying benefits on December 7, 2015. (AR 15-33.) Plaintiff filed a Request for Review and the Appeals Council denied review on February 8, 2017. (AR 1-6.) This timely appeal followed.


         The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2017. (AR 20.) Then, applying the five step evaluation process, the ALJ determined, at step one, that Plaintiff had not engaged in substantial gainful activity since January 22, 2012, the alleged disability onset date. (Id.) At step two, the ALJ found that Plaintiff has the following severe impairments:

obesity; peroneus longus tendon tear, status post-surgical repair; diabetes mellitus; diabetic peripheral neuropathy; bilateral diabetic proliferative retinopathy, status post vitrectomy and pan retinal photocoagulation; bilateral diabetic foot ulcers, status post osteotomies; diabetic chronic kidney disease; glomerulosclerosis; neovascular glaucoma, status post shunt right eye; bilateral cataract, status post removal of cataract in the right eye; and degenerative disc disease of lumbar spine; anemia.

(AR. 20.) At step three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). The ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to perform

less than a full range of sedentary work . . . . [Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk 2 hours in an 8 hour day; sit 6 hours in an 8 hour day with normal [sic]; never operate foot controls with bilateral lower extremities; occasional ramp and stairs; occasionally climb ladders, ropes, and scaffolds; occasionally balance, stoop, knee [sic], crouch, and crawl; avoid concentrated exposure to work place hazards such as dangerous moving machinery and unprotected heights; and limited to occupations that do not require depth perception.

(AR 23.)

         At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. (AR 26.) At step five, based on the VE's hearing testimony, the ALJ determined “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform, including occupations such as order clerk (DOT 209.567-014)[1], with an exertional level of sedentary and SVP 2; addresser (DOT 209.587-0101), sedentary, SVP 2; and call out operator (DOT 237.367-014), sedentary, SVP 2. (AR. 27-28.) The ALJ thus concluded that Plaintiff has not been under a disability as defined in the Social Security Act, from January 22, 2012 through the date of his decision. (AR 28.)


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘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.'” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (citations omitted). “Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted).

         Although this Court cannot substitute its discretion for the Commissioner's, the Court nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists if the error is “‘inconsequential to the ultimate nondisability determination, ' or that, despite the legal error, ‘the agency's path may reasonably be discerned.'” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations omitted).


         Plaintiff challenges the Agency's denial of benefits based on the following nine disputed issues:

Issue No. 1: Whether the ALJ adequately addressed Plaintiff's testimony regarding his pain and limitations.
Issue No. 2: Whether the ALJ properly considered ineffective ambulation.
Issue No. 3: Whether the ALJ properly considered the opinion of Dr. Kent.
Issue No. 4: Whether the ALJ properly considered the state agency opinion limiting Plaintiff to simple, repetitive tasks and a moderate limitation in concentration, persistence, and pace.
Issue No. 5: Whether the ALJ failed to provide any rationale for the vision limitations provided.
Issue No. 6: Whether the ALJ properly considered obesity.
Issue No. 7: Whether the ALJ properly considered if Plaintiff meets the kidney disease or equaling the listing considering all of his impairments combined.
Issue No. 8: New and material evidence warrants disabled or remand.
Issue No. 9: Whether the ALJ properly considered the reporting of Drs. Rameshini and Glandorf, chiropractors.

(Joint Stip. 1-2.)


         I. ALJ's Assessment of Plaintiff's Subjective Testimony (Issue One)

         In assessing Plaintiff's subjective testimony regarding the severity of his symptoms, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 24.) However, the ALJ found that Plaintiff's statements about the intensity, persistence, and limiting effect of those symptoms were “not entirely credible.” (Id.) Plaintiff argues that the ALJ failed to provide legally sufficient reasons, supported by substantial record evidence, for discounting Plaintiff's credibility as to the severity of his symptoms. (Joint Stip. at 4-15.) For the reasons discussed below, the Court agrees.

         A. Applicable Law

         An ALJ must make two findings before determining that a claimant's pain or symptom testimony is not credible.[2] Treichler v. Comm'r of SSA, 775 F.3d 1090, 1102 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (quoting Lingenfelter, 504 F.3d at 1036). “Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of the claimant's symptoms” and those reasons must be supported by substantial evidence in the record. Treichler, 775 F.3d at 1102; see also Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015); Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (court must determine “whether the ALJ's adverse credibility finding . . . is supported by substantial evidence under the clear-and-convincing standard”).

         In weighing a claimant's credibility, the ALJ may consider a number of factors, including: “(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony . . . that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ must also “specifically identify the testimony [from the claimant that] she or he finds not to be credible and . . . explain what evidence undermines the testimony.” Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). “General findings are insufficient.” Brown-Hunter, 806 F.3d at 493 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

         B. ...

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