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Christine W. v. Saul

United States District Court, C.D. California, Eastern Division

July 8, 2019

CHRISTINE W., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED, STATES MAGISTRATE JUDGE

         I. PROCEEDINGS

         Christine W.[1] ("plaintiff') filed this action on July 5, 2018, seeking review of the Commissioner's[2] denial of her application for Disability Insurance Benefits ("DIB"). On July 10, 2018, she filed a First Amended Complaint. [ECF No. 10.] The parties filed Consents to proceed before a Magistrate Judge on August 1, 2018, and August 14, 2018. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively "JS") on May 9, 2019, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Submission under submission without oral argument.

         II. BACKGROUND

         Plaintiff was born in 1967. [Administrative Record ("AR") at 126, 496.] She has past relevant work experience in the composite job of credit clerk and teller. [kL at 495, 529.]

         On February 28, 2011, plaintiff filed an application fora period of disability and DIB alleging that she has been unable to work since January 13, 2011. [Id. at 542; see Id. at 124-30.] After her application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an ALJ. [Id. at 89-90.] A hearing was held on April 4, 2013, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [Id. at 45-72.] Plaintiffs husband also testified, [Id. at 65-71.] On May 16, 2013, the ALJ issued a decision concluding that plaintiff was not under a disability from January 13, 2011, the alleged onset date, through May 16, 2013, the date of the decision ("2013 Decision").[3] [Id. at 542-53.] Plaintiff requested review of the ALJ's decision by the Appeals Council, which was denied on December 11, 2014. [id. at 1-5.] Plaintiff then filed an action with this Court in case number ED CV 15-247-PLA, and on December 4, 2015, this Court remanded the matter, [Id. at 588-604; see also Id. at 605-07 (Appeals Council Remand Order).] On December 19, 2016, a remand hearing was held before a different ALJ, at which time plaintiff again appeared represented by an attorney and testified on her own behalf. [Id. at 506-38.] AVE also testified. [Id. at 517-20, 527-36.] On May 3, 2018, the ALJ issued a decision again concluding that plaintiff was not under a disability from January 13, 2011, the alleged onset date, through December 31, 2016, the date last insured ("2018 Decision"). [Id. at 486-97.] At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.984. This action followed.

         III. STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

         "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Revels v. Berrvhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Id. (internal quotation marks and citation omitted). However, the Court "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence." Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal quotation marks omitted)). The Court will "review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely." Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.").

         IV. THE EVALUATION OF DISABILITY

         Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. Garcia v. Comm'r of Soc. Sec, 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 U.S.C. § 423(d)(1)(A)).

         A. THE FIVE-STEP EVALUATION PROCESS

         The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart. 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry. 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied, Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled because there is other work existing in "significant numbers" in the national or regional economy the claimant can do, either (1) by the testimony of a VE, or (2) by reference to the Medical- Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chafer. 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since January 13, 2011, the alleged onset date, through December 31, 2016, her date last insured. [AR at 488.] At step two, the ALJ concluded that plaintiff has the severe impairments of chronic back pain syndrome, history of fusion in 2008; obesity; adjustment disorder with anxiety and depressed mood; and unspecified neurocognitive disorder.[4] [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [Id.] at 489.] The ALJ further found that through the date last insured, plaintiff retained the residual functional capacity ("RFC")[5] to perform light work[6] as defined in 20 C.F.R. § 404.1567(b), [7] as follows:

[She was] able to sit for 6 hours of an 8-hour workday and stand/walk 6 hours of an 8-hour workday. She was able to frequently handle and reach with each upper extremity. [She] was able to make simple work related decisions and perform jobs that could be learned on-the-job in 30 days or less. In addition, she could frequently interact with supervisors, co-workers, and the general public.

[Id. at 491.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that through the date last insured, plaintiff was unable to perform her past relevant work in the composite job of credit clerk and teller, [Id. at 495, 528-29.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as a "routing clerk" (Dictionary of Occupational Titles ("DOT") No. 222.687-022), as a "router" (DOT No. 222.587- 038), and as a "marker" (DOT No. 209.587-034). [AR at 496, 531-36.] Accordingly, the ALJ determined that plaintiff was not disabled at anytime from the alleged onset date of January 13, 2011, through December 31, 2016, her date last insured. [Id. at 497.]

         V. THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when he: (1) failed to comply with the law of the case/rule of mandate; (2) considered the mental impairment of record; and (3) considered the physical impairment of record. [JS at 4-5.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. LAW OF THE CASE AND RULE OF MANDATE

         The ALJ in the 2013 Decision determined that plaintiff was unable to perform her past relevant work as a financial services representative[8] and had the RFC to perform sedentary work in that she can "lift and/or carry no more than 10 pounds occasionally and frequently; she can stand and/or walk for six hours out of an eight-hour workday with regular breaks; she can sit for six hours out of an eight-hour workday with regular breaks; [and she] is limited to simple and repetitive tasks." [AR at 546.] He did not take testimony from a VE; instead, he determined at step five, based on plaintiffs RFC and vocational factors, that although plaintiff was unable to perform the full range of sedentary work, her "additional limitations have little or no effect on the occupational base of unskilled sedentary work" and, therefore, "[a] finding of 'not disabled' is . . . appropriate under the framework of 20 C.F.R. part 404, subpart P, appendix 2, § 201.25 (the "Grids"), [Id. at 40.] On appeal of the 2013 Decision to this Court, plaintiff only challenged the ALJ's evaluation of medical opinions pertaining to plaintiffs mental health, particularly the opinions of Robin Rhodes Campbell, Ph.D. and Sally Varghese, M.D. [Id. at 594; see also C.D. Case No. ED CV 15-247-PLA, ECF No. 18 at 4, 22-24.] Plaintiff did not challenge the ALJ's determination regarding her physical impairments or limitations.

         In its December 4, 2015, Memorandum Opinion and Order remanding the 2013 Decision, this Court determined that the ALJ erred in his evaluation of the medical opinion evidence of plaintiffs mental limitations - the only issue raised by plaintiff in that action. ...


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