United States District Court, E.D. California
ALLISON CLAIRE JUDGE.
seeks judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”), denying her
application for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34, and for Supplemental
Security Income (“SSI”) under Title XVI of the
Social Security Act (“the Act”), 42 U.S.C.
reasons that follow, the court will deny plaintiff's
motion for summary judgment, and grant the Commissioner's
cross-motion for summary judgment.
protectively applied for DIB and SSI on June 24, 2014.
Administrative Record (“AR”) 286-97. The
disability onset date for both applications was alleged to be
January 12, 2010. AR 286, 288. The applications were
disapproved initially and on reconsideration. AR 125, 135,
137-38, 146, 154-56. On January 17, 2017, ALJ Daniel G. Heely
presided over the hearing on plaintiff's challenge to the
disapprovals. AR 93-114 (transcript). Plaintiff was present
and testified at the hearing. AR 93-95. Plaintiff was
represented at the hearing by attorney Jeffrey Duarte, who
continues to represent her in this appeal. Id.
22, 2017, the ALJ issued an unfavorable decision, finding
plaintiff “not disabled” under Sections 216(i)
and 223(d) of Title II of the Act, 42 U.S.C. §§
416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI of the
Act, 42 U.S.C. § 1382c(a)(3)(A). AR 62-73 (decision). On
July 25, 2017, plaintiff requested review by the Appeals
Council. AR 283, 366-79. On April 13, 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 1-7 (decision).
filed this action on June 7, 2018. ECF No. 1; see 42
U.S.C. §§ 405(g), 1383(c)(3). The parties consented
to the jurisdiction of the magistrate judge. ECF Nos. 6, 7.
The parties' cross-motions for summary judgment, based
upon the Administrative Record filed by the Commissioner,
have been briefed. ECF Nos. 12 (plaintiff's summary
judgment motion), 19 (Commissioner's summary judgment
was born in 1955, and accordingly was 54 years old on the
alleged disability onset date, making her a “person
closely approaching advanced age” under the
regulations. AR 33; see 20 C.F.R §§
404.1563(d), 416.963(d). Plaintiff has a high school
education; can communicate in English; and has past work
experience as a salesperson, a beauty advisor, and an office
worker. AR 320-22.
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 relevant 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).
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
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. Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th
Cir. 2006)); see also Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
Insurance Benefits and Supplemental Security Income are
available for every eligible individual who is
“disabled.” 42 U.S.C. §§ 423(a)(1)(E)
(DIB), 1381a (SSI). Plaintiff is “disabled” if
she 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) and
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) and
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) and
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) and
416.920(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) and
claimant bears the burden of proof in the first four steps of
the sequential evaluation process. 20 C.F.R. §§
404.1512(a) (“In general, you have to prove to us that
you are blind or disabled”), 416.912(a) (same);
Bowen, 482 U.S. at 146 n.5. However, “[a]t the
fifth step of the sequential analysis, the burden shifts to
the Commissioner to demonstrate that the claimant is not
disabled and can engage in work that exists in significant
numbers in the national economy.” Hill v.
Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012);
Bowen, 482 U.S. at 146 n.5.
made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through March 31, 2014.
2. [Step 1] The claimant has not engaged in substantial
gainful activity since January 12, 2010, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et
seq.). (Exhibits 6D; 8D)
3. [Step 2] The claimant has the following severe
impairments: degenerative disc disease of the cervical and
lumbar spine; and history of left ankle fracture in 2012,
status post open reduction internal fixation. (20 CFR
404.1520(c) and 416.920(c)).
4. [Step 3] The claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5. [RFC] After careful consideration of the entire record,
the undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) with the following
limitations: The claimant can sit for six hours of an 8-hour
workday and stand and/or walk for six hours of an 8-hour
workday, with normal breaks. She can lift and/or carry 10
pounds frequently and 20 pounds occasionally. The claimant
can never climb ladders, ropes, and scaffolds, and can
occasionally climb ramps and stairs. She can never work
around hazards like moving dangerous machinery. She cannot
operate motor vehicles.
6. [Step 4] The claimant is capable of performing past
relevant work as a beauty culturist (cosmetologist). This
work does not require the performance of work-related
activities precluded by the claimant's residual
functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined
in the Social Security Act, from January 12, 2010, through
the date of this decision (20 CFR 404.1520(f) and
noted, the ALJ concluded that plaintiff was “not
disabled” under Sections 216(i) and 223(d) of Title II
of the Act, 42 U.S.C. §§ 416(i), 423(d), and
Section 1614(a)(3)(A) of ...