United States District Court, C.D. California
MARVIN J. CANNON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
HONORABLE SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE
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.
filed an application for DIB on October 31, 2012,
alleging disability beginning on September 17, 2012.
Transcript (“Tr.”) 174-82. 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.
STANDARD OF REVIEW
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).
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).
Establishing Disability Under The Act
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.
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
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].
Id. at 1098-99.
The Treating Physician's, Dr. Lane,
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,
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 ...