United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
L. STEVENSON UNITED STATES MAGISTRATE JUDGE
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.)
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.)
issues are now fully briefed and the Court has taken the
matter under submission without oral argument.
OF ADMINISTRATIVE PROCEEDINGS
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.
OF ADMINISTRATIVE DECISION
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
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.
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), 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.
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).
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).
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).
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
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
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
Issue No. 9: Whether the ALJ properly considered the
reporting of Drs. Rameshini and Glandorf, chiropractors.
(Joint Stip. 1-2.)
ALJ's Assessment of Plaintiff's Subjective Testimony
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.
must make two findings before determining that a
claimant's pain or symptom testimony is not
credible. 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
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)).