United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
seeks judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”) granting him
disability insurance benefits (“DIB”) for a
closed period from August 11, 2014 through April 28, 2016,
and denying him DIB thereafter. Benefits were sought under
Title II of the Social Security Act (“the Act”),
42 U.S.C. §§ 401-34, and under Part A of Title
XVIII of the Act, 42 U.S.C. §§ 1395(c) et
seq. The Commissioner determined that plaintiff
had been disabled during the closed period due to a severe
spine impairment, but that his disability ceased on April 29,
2016, when he experienced a medical improvement following
spinal surgery. For the reasons that follow, plaintiff's
motion for summary judgment will be GRANTED, and
defendant's cross-motion for summary judgment will be
applied for DIB on September 16, 2014. Administrative Record
(“AR”) 17.The disability onset date was alleged to be
August 11, 2014. Id. The application was disapproved
initially and on reconsideration. AR 86-93, 95-103. On
September 23, 2016, ALJ Sheila Walters presided over the
hearing on plaintiff's challenge to the disapprovals. AR
55-85 (transcript). Plaintiff, who appeared with his counsel,
Ms. Langley Kreuze, was present at the hearing. AR 57. Mr.
Stephen Schmidt, a Vocational Expert (“VE”), also
testified at the hearing. Id.
December 21, 2016, the ALJ found that plaintiff was disabled
from August 11, 2014 through April 28, 2016, but improved
following surgery and was no longer disabled as of April 29,
2016. AR 17-30 (decision). On January 22, 2018, the Appeals
Council denied plaintiff's request for review, leaving
the ALJ's decision as the final decision of the
Commissioner of Social Security. AR 1-3.
filed this action on March 9, 2018. ECF No. 1; see
42 U.S.C. § 405(g). The parties consented to the
jurisdiction of the magistrate judge. ECF Nos. 5, 9. The
parties' cross-motions for summary judgment, based upon
the Administrative Record filed by the Commissioner, have
been fully briefed. ECF Nos. 14 (plaintiff's summary
judgment motion), 14 (Commissioner's cross-motion for
summary judgment), 16 (plaintiff's reply).
was born in 1959, and accordingly was, at age 55, a
“[p]erson of advanced age” under the regulations,
20 C.F.R. § 404.1563(e), when he filed his application.
AR 208. Plaintiff has at least a high school education, and
can communicate in English. AR 62-63, 203. Plaintiff worked
as an estimator for a construction company from 2010 - 2014.
Commissioner's decision that a claimant is not disabled
will be upheld “if it is supported by substantial
evidence and if the Commissioner applied the correct legal
standards.” Howard ex rel. Wolff v. Barnhart,
341 F.3d 1006, 1011 (9th Cir. 2003). “‘The
findings of the Secretary as to any fact, if supported by
substantial evidence, shall be conclusive . . . .'”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995) (quoting 42 U.S.C. § 405(g)).
evidence is “more than a mere scintilla, ” but
“may be less than a preponderance.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It
means such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks omitted). “While inferences from the record can
constitute substantial evidence, only those ‘reasonably
drawn from the record' will suffice.” Widmark
v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)
(citation omitted). Although this court cannot substitute its
discretion for that of the Commissioner, 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.” Desrosiers v. Secretary of HHS,
846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler,
760 F.2d 993, 995 (9th Cir. 1985) (“The court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion; it may not affirm
simply by isolating a specific quantum of supporting
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). “Where the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 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 v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007); Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It
was error for the district court to affirm the ALJ's
credibility decision based on evidence that the ALJ did not
discuss”). //// The court will not reverse the
Commissioner's decision if it is based on harmless error,
which exists only when it is “clear from the record
that an ALJ's error was ‘inconsequential to the
ultimate nondisability determination.'” Robbins
v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)
(quoting Stout v. Commissioner, 454 F.3d 1050, 1055
(9th Cir. 2006)); see also Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
Insurance Benefits are available for every eligible
individual who is “disabled.” 42 U.S.C. §
402(d)(1)(B)(ii). Plaintiff is “disabled” if he
is “‘unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment . . . .'” Bowen v. Yuckert, 482
U.S. 137, 140 (1987) (quoting identically worded provisions
of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)).
Commissioner uses a five-step sequential evaluation process
to determine whether an applicant is disabled and entitled to
benefits. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20,
24-25 (2003) (setting forth the “five-step sequential
evaluation process to determine disability” under Title
II and Title XVI). The following summarizes the sequential
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is not disabled. If not,
proceed to step two.
20 C.F.R. § 404.1520(a)(4)(i), (b).
Step two: Does the claimant have a “severe”
impairment? If so, proceed to step three. If not, the
claimant is not disabled.
Id. § 404.1520(a)(4)(ii), (c).
Step three: Does the claimant's impairment or combination
of impairments meet or equal an impairment listed in 20
C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is
disabled. If not, proceed to step four.
Id. § 404.1520(a)(4)(iii), (d).
Step four: Does the claimant's residual functional
capacity make him capable of performing his past work? If so,
the claimant is not disabled. If not, proceed to step five.
Id. § 404.1520(a)(4)(iv), (e), (f).
Step five: Does the claimant have the residual functional
capacity perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.
Id. § 404.1520(a)(4)(v), (g).
claimant is found disabled at any point in this process, the
ALJ must also determine if the disability continues through
the date of the decision. DIB cannot be terminated unless
substantial evidence demonstrates medical improvement in the
claimant's impairment so that the claimant is able to
engage in substantial gainful activity. See 42
U.S.C. § 423(f). The Commissioner has established an
eight-step sequential evaluation process under Title II for
continuing disability review (“CDR”):
(1) Are you engaging in substantial gainful activity? If you
are (and any applicable trial work period has been
completed), we will find disability to have ended (see
paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination
of impairments which meets or equals the severity of an
impairment listed in appendix 1 of this subpart? If you do,
your disability will be found to continue.
(3) If you do not, has there been medical improvement as
defined in paragraph (b)(1) of this section? If there has
been medical improvement as shown by a decrease in medical
severity, see step (4). If there has been no decrease in
medical severity, there has been no medical improvement. (See
(4) If there has been medical improvement, we must determine
whether it is related to your ability to do work in
accordance with paragraphs (b)(1) through (4) of this
section; i.e., whether or not there has been an increase in
the residual functional capacity based on the impairment(s)
that was present at the time of the most recent favorable
medical determination. If medical improvement is not related
to your ability to do work, see step (5). If medical
improvement is related to your ability to do work, see step
(5) If we found at step (3) that there has been no medical
improvement or if we found at step (4) that the medical
improvement is not related to your ability to work, we
consider whether any of the exceptions in paragraphs (d) and
(e) of this section apply. If none of them apply, your
disability will be found to continue. If one of the first
group of exceptions to medical improvement applies, see step
(6). If an exception from the second group of exceptions to
medical improvement applies, your disability will be found to
have ended. The second group of exceptions to medical
improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your
ability to do work or if one of the first group of exceptions
to medical improvement applies, we will determine whether all
your current impairments in combination are severe (see
§ 404.1521). This determination will consider all your
current impairments and the impact of the combination of
those impairments on your ability to function. If the
residual functional capacity assessment in step (4) above
shows significant limitation of your ability to do basic work
activities, see step (7). When the evidence shows that all
your current impairments in combination do not significantly
limit your physical or mental abilities to do basic work
activities, these impairments will not be considered severe
in nature. If so, you will no longer be considered to be
(7) If your impairment(s) is severe, we will assess your
current ability to do substantial gainful activity in
accordance with § 404.1560. That is, we will assess your
residual functional capacity based on all your current
impairments and consider whether you can still do work you
have done in ...