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Kovalenko v. Berryhill

United States District Court, E.D. California

May 31, 2018

PAVEL KOVALENKO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

         ORDER 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

         Pavel 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).

         PROCEDURAL HISTORY

         On 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 (“Commissioner”).

         On 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).[1]

         STANDARD OF REVIEW

         District 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).

         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) (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).

         DISABILITY BENEFITS

         To 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).

         ADMINISTRATIVE DETERMINATION

         To 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.

         A. Relevant Medical Opinions

         In July 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 arthropathies.” (Id.)

         Dr. 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 the ...


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