United States District Court, E.D. California
GRANTING PLANTIFF'S MOTION FOR SUMMARY JUDGMENT AND
REMANDING THE ACTION PURSUANT TO SENTENCE FOUR OF 42 U.S.C.
§ 405(g) ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
PLAINTIFF PAVEL KOVALENKO AND AGAINST DEFENDANT NANCY A.
BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Kovalenko asserts he is entitled to supplemental security
income under Title XVI of the Social Security Act. Plaintiff
argues the administrative law judge erred in evaluating the
record and seeks judicial review of the decision to deny his
application for benefits. (Doc. 21) Because the ALJ erred in
rejecting limitations identified by Plaintiff's treating
physician, Plaintiff's motion for summary judgment is
GRANTED and the matter is
REMANDED for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g).
March 18, 2013, Plaintiff filed his application for benefits,
alleging disability beginning November 3, 2004. (Doc. 13-6 at
2) The Social Security Administration denied Plaintiff's
applications for benefits at the initial level and upon
reconsideration. (See generally Doc. 13-4) Plaintiff
requested an administrative hearing, at which he testified
before an ALJ on May 5, 2015. (Doc. 13-3 at 17, 35) The ALJ
concluded Plaintiff was not disabled and issued an order
denying benefits on June 25, 2015. (Id. at 17-27)
The Appeals Council denied Plaintiff's request for review
of the decision on December 5, 2016. (Id. at 2-5)
Thus, the ALJ's determination became the final decision
of the Commissioner of Social Security
February 2, 2017, Plaintiff initiated the action in this
Court by filing a complaint. (Doc. 1) The Commissioner lodged
the certified administrative record on October 12, 2017.
(Doc. 13) The parties then exchanged confidential letter
briefs as ordered. (Docs. 15, 18) On February 12, 2018,
Plaintiff filed his motion for summary judgment (Doc. 21), to
which the Commissioner filed a brief in opposition on April
24, 2018 (Doc. 24).
courts have a limited scope of judicial review for disability
claims after a decision by the Commissioner to deny benefits
under the Social Security Act. When reviewing findings of
fact, such as whether a claimant was disabled, the Court must
determine whether the Commissioner's decision is
supported by substantial evidence or is based on legal error.
42 U.S.C. § 405(g). The ALJ's determination that the
claimant is not disabled must be upheld by the Court if the
proper legal standards were applied and the findings are
supported by substantial evidence. See Sanchez v.
Sec'y of Health & Human Serv., 812 F.2d 509, 510
(9th Cir. 1987).
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) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as
a whole must be considered, because “[t]he court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion.” Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
qualify for benefits under the Social Security Act, Plaintiff
must establish she is unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C.
§ 1382c(a)(3)(A). An individual shall be considered to
have a disability only if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work,
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a
claimant to establish disability. Terry v. Sullivan,
903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant
establishes a prima facie case of disability, the burden
shifts to the Commissioner to prove the claimant is able to
engage in other substantial gainful employment. Maounois
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
achieve uniform decisions, the Commissioner established a
sequential five-step process for evaluating a claimant's
alleged disability. 20 C.F.R. §§ 404.1520,
416.920(a)-(f). The process requires the ALJ to determine
whether Plaintiff (1) engaged in substantial gainful activity
during the period of alleged disability, (2) had medically
determinable severe impairments (3) that met or equaled one
of the listed impairments set forth in 20 C.F.R. § 404,
Subpart P, Appendix 1; and whether Plaintiff (4) had the
residual functional capacity (“RFC”) to perform
to past relevant work or (5) the ability to perform other
work existing in significant numbers at the state and
national level. Id. The ALJ must consider
testimonial and objective medical evidence. 20 C.F.R.
§§ 404.1527, 416.927.
Relevant Medical Opinions
2013, Plaintiff had x-rays taken of his lumbar spine. (Doc.
13-8 at 30) Dr. Michael Rappaport determined Plaintiff had
“[d]egenerative changes with disc space
narrowing” at levels L1-2, L4-5, and L5-6; osteophyte
formation at the L1-2 through L5-6 levels; and
“possible mild left L5-6 and L6-S1 facet
Samuel Rush performed a consultative examination on July 18,
2013. (Doc. 13-8 at 24) Plaintiff informed Dr. Rush that
“most of his problems date[d] back to 2004 when he was
in a truck driving accident, ” which caused Plaintiff
to suffer herniated discs, “a laceration on his scalp
which required skin graft[, ] and extensive burns and muscle
tear on his left forearm which also required skin
grafting.” (Id.) Plaintiff reported that he
continued to have “a lot of back pain when bending,
lifting, or walking more than short distances” and was
“very depressed.” (Id.) Dr. Rush found
Plaintiff's range of motion was normal in each of his
joints, and he had a negative straight leg raising test.
(Id. at 26-27) According to Dr. Rush,
Plaintiff's motor strength was “5/5 in [his] upper
and lower extremities bilaterally.” (Id. at
27) He observed Plaintiff walked “without difficulty,
” including walking on his toes and heels.
(Id. at 28) Dr. Rush opined Plaintiff was
“oriented to time, place, and person, although he
… [had] a moderately depressive affect.”
(Id.) Dr. Rush concluded that “[b]ased upon