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Cannon v. Berryhill

United States District Court, C.D. California

May 30, 2018

MARVIN J. CANNON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          HONORABLE SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marvin J. Cannon (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner” or the “Agency”) denying his application for disability insurance benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This Court has jurisdiction, under 42 U.S.C. § 405(g), and, pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Commissioner's decision is REVERSED and this action is REMANDED for further proceedings consistent with this Order.

         I. BACKGROUND

         Plaintiff filed an application for DIB on October 31, 2012, [1] alleging disability beginning on September 17, 2012. Transcript (“Tr.”) 174-82.[2] Following a denial of benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on May 29, 2015, an ALJ determined Plaintiff was not disabled. Tr. 20-33. Plaintiff sought review by the Appeals Council, however, review was denied, on September 20, 2016. Tr. 1-6. This appeal followed.

         II. STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation omitted). In reviewing the Commissioner's alleged errors, this Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). That is, “the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (internal quotations omitted).

         “‘When evidence reasonably supports either confirming or reversing the ALJ's decision, [the Court] may not substitute [its] judgment for that of the ALJ.'” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 1196)); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ's credibility finding is supported by substantial evidence in the record, [the Court] may not engage in second-guessing.” (internal citation omitted)). A reviewing court, however, “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not reverse an ALJ's decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         III. DISCUSSION

         A. Establishing Disability Under The Act

         To establish whether a claimant is disabled under the Act, it must be shown that:

(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and
(b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.

Tackett, 180 F.3d at 1098 (citing 42 U.S.C. § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.'” Id.

         The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step is potentially dispositive and “if a claimant is found to be ‘disabled' or ‘not-disabled' at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

         The five steps are:

Step 1. Is the claimant presently working in a substantially gainful activity [(“SGA”)]? If so, then the claimant is “not disabled” within the meaning of the [] Act and is not entitled to [DIB]. If the claimant is not working in a [SGA], then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).
Step 2. Is the claimant's impairment severe? If not, then the claimant is “not disabled” and is not entitled to [DIB]. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).
Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to [DIB]. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to [DIB]. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).
Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to [DIB]. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 [(“the Listings”)]. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to [DIB]. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to [DIB]. See Id.

Id. at 1098-99.

         B. The Treating Physician's, Dr. Lane, Opinions

         Dr. Lane was one of two treating physician's whose opinions the ALJ considered. Dr. Lane, however, appears to have been the physician who treated Plaintiff the longest, from, at least, December 2007 through December 2014. See Tr. 379, 874. During this seven-year span, it appears that Dr. Lane treated and/or evaluated Plaintiff on, at least, 37 occasions. Tr. 379, 385, 386, 391-97, 406-35, 672, 682, 694, 695, 747, 752, and 873.

         Following Plaintiff's spine surgery in March 2012 by neurosurgeon Dr. Ostrup, Dr. Lane treated Plaintiff on at least 17 occasions. Tr. 415-35, 672, 694, 695, 747-52, and 873. Though Dr. Lane indicates that Plaintiff stated he was doing well after the surgery, and indicated on July 6, 2012, that Plaintiff had “moderate improvement of his lumbar back pain[, ]” by November ...


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