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D.E.H v. Saul

United States District Court, C.D. California

July 12, 2019

D.E.H, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          HONORABLE SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE JUDGE.

         Plaintiff D.E.H.[1] (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner, ” “Agency, ” or “Defendant”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”), under Titles II and XVI of the Social Security Act (the “Act”). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and, pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Commissioner's decision is REVERSED and this action is REMANDED for further proceedings consistent with this Order.

         I. BACKGROUND

         Plaintiff filed an application for DIB on April 22, 2014 and for SSI on April 25, 2014, alleging disability beginning on December 4, 2013. Transcript (“Tr.”) 183-84 (DIB application summary); 185-90 (SSI application summary).[2] Following a denial of benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on October 20, 2016, ALJ Michael B. Richardson determined that Plaintiff was not disabled. Tr. 16-32. Plaintiff sought review of the ALJ's decision with the Appeals Council; however, review was denied on February 1, 2018. Tr. 1-7. This appeal followed.

         II. STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 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) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         “‘When evidence reasonably supports either confirming or reversing the ALJ's decision, [the Court] may not substitute [its] judgment for that of the ALJ.'” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ's credibility finding is supported by substantial evidence in the record, [the Court] may not engage in second-guessing.”) (citation omitted). A reviewing court, however, “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not reverse an ALJ's decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         III. DISCUSSION

         A. Establishing Disability Under The Act

         To establish whether a claimant is disabled under the Act, it must be shown that:

(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and
(b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.'” Id.

         The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(a), 416.920(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled' or ‘not-disabled' at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098; 20 C.F.R. §§ 404.1520, 416.920. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

The five steps are:
Step 1. Is the claimant presently working in a substantially gainful activity [(“SGA”)]? If so, then the claimant is “not disabled” within the meaning of the [] Act and is not entitled to [DIB or SSI]. If the claimant is not working in a [SGA], then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).[3]
Step 2. Is the claimant's impairment severe? If not, then the claimant is “not disabled” and is not entitled to [DIB or SSI]. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).
Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to [DIB or SSI]. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).
Step 4. Is the claimant able to do any work that he or she has done in the past?[4] If so, then the claimant is “not disabled” and is not entitled to [DIB or SSI]. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).
Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to [DIB or SSI]. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to [DIB or SSI]. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to [DIB or SSI]. See Id. Id. at 1098-99.

         B. Summary Of ALJ And Agency's Findings

         The ALJ determined that “[Plaintiff] meets the insured status requirements of the . . . Act through December 31, 2017.” Tr. 21. The ALJ then found at step one, that “[Plaintiff] has not engaged in [SGA] since December 4, 2013, the alleged onset date (20 C.F.R. 404.1571 et seq. and 416.971 et seq.).” Id. (italics in original). At step two, the ALJ found that “[Plaintiff] has the following severe impairment: degenerative disc disease of the lumbar spine with L5-S1 spondylitic spondylolisthesis with bilateral radiculopathy (20 CFR 404.1520(c) and 416.920(c)).” Tr. 22. At step three, the ALJ found that “[Plaintiff] 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).” Id.

In preparation for step four, the ALJ found that Plaintiff has the RFC to: perform a range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) and SSR 83-10 specifically as follows: [Plaintiff] can lift and/or carry 20 pounds occasionally and 10 pounds 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; she is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; she is precluded from climbing ladders ropes, and scaffolds; she can frequently perform all other postural activities; she is precluded from concentrated exposure to extreme cold, fumes, dust, odors, other pulmonary irritants, hazards, and uneven terrain; she requires the ability to alternate between sitting and standing at will without going off task; and she requires the ability to use an assistive device for ambulating for longer than 20 minutes.

Tr. 24-25. The ALJ then found, at step four, that “[Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).” Tr. 29.

         In preparation for step five, the ALJ noted that “[Plaintiff] was born on April 2, 1986 and was 27 years old, which is defined as a younger individual age 18-49, on alleged disability onset date (20 CFR 404.1563 and 416.963).” Tr. 30. The ALJ observed that “[Plaintiff] has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).” Id. The ALJ then added that “[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,' whether or not the claimant has transferable job skills (See SSR [Social Security Ruling] 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). Id.

         At step five, the ALJ found that “[c]onsidering [Plaintiff's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).” Id. Specifically, the ALJ found that Plaintiff could perform the “unskilled light” occupations of “Cashier II, ” as defined in the Dictionary of Occupational Titles (“DOT”) code 211.462-010, “Small products assembler II, DOT 739.687-030, ” and “Assembler, plastic hospital products, DOT 712.687-010.” Tr. 30-31. The ALJ based his decision that Plaintiff could perform the aforementioned occupations “on the testimony of the [VE]” provided during the administrative hearing, after “determin[ing] that the [VE's] testimony [wa]s consistent with the information contained in the [DOT].” Tr. 31.

         After finding Plaintiff “capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” the ALJ concluded that “[a] finding of not disabled is . . . appropriate under the framework of the above-cited rules.” Id. (internal quotation marks omitted). The ALJ, therefore, found that “[Plaintiff] has not been under a disability, as defined in the . . . Act, from December 4, 2013, through [October 20, 2016], the date of th[e] decision (20 CFR 404.1520(g) and 416.920(g)).” Id.

         C. Summary Of Plaintiff's Arguments

         In this appeal, Plaintiff raises 2 issues, including whether the ALJ erred by: (1) failing to properly consider Plaintiff's testimony; and (2) failing to propound a proper hypothetical question to the vocational expert at the administrative hearing. ECF No. 16, Joint Stipulation (“J. Stip.”) at 5, 20.

         D. Findings And Arguments Regarding ...


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