United States District Court, C.D. California
OPINION AND ORDER
HONORABLE SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE
D.E.H. (“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
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). 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
STANDARD OF REVIEW
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).
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).
Establishing Disability Under The Act
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
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. §
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? 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
Summary Of ALJ And Agency's Findings
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
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
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.
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.
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.
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.
Summary Of Plaintiff's Arguments
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.
Findings And Arguments Regarding ...