United States District Court, S.D. California
REPORT AND RECOMMENDATION ON MOTION AND CROSS MOTION
FOR SUMMARY JUDGMENT [ECF NOS. 15, 20]
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE
Gerald Miller (“Plaintiff”) filed this action
pursuant to 42 U.S.C. § 405(g) for judicial review of
the final administrative decision of the Commissioner of the
Social Security Administration (“Commissioner”)
denying Plaintiff's application for Disability Insurance
Benefits under Title II of the Social Security Act
reasons expressed herein, the Court recommends the case be
REMANDED to the ALJ for further analysis on
the issue of whether Plaintiff's diabetes mellitus should
have been specifically addressed as a severe impairment
within the context of Plaintiff's RFC.
was born December 8, 1955. (AR 54). At the time the instant
application was filed on January 15, 2014, Plaintiff was 57
years-old which categorized him as a person of advanced age.
20 C.F.R. § 404.1563, 416.963.
January 15, 2014, Plaintiff protectively filed an application
for a period of disability insurance benefits under Title II
of the Social Security Act, alleging a disability beginning
June 1, 2013. (ECF No. 15-1, p. 1). After his application was
denied initially and upon reconsideration, Plaintiff
requested an administrative hearing before an administrative
law judge (“ALJ”). (AR 46). An administrative
hearing was held on April 5, 2016. Plaintiff appeared and was
represented by attorney Don Jorgensen. Testimony was taken
from Plaintiff and John P. Kilcher a vocational expert
(“VE”). (Id.). On May 18, 2016, the ALJ
issued a decision denying Plaintiff's claim for benefits.
18, 2016, Plaintiff sought review with the Appeals Council.
(AR 40). On December 11, 2017, the Appeals Council denied
Plaintiff's request for review and declared the
Administrative Law Judge's decision to be the final
decision of the Commissioner of Social Security in
Plaintiff's case. (AR 1). This timely civil action
405(g) and 1383(c)(3) of the Social Security Act allow
unsuccessful applicants to seek judicial review of a final
agency decision of the Commissioner. 42 U.S.C. §§
405(g), 1383(c)(3). The scope of judicial review is limited
in that a denial of benefits will not be disturbed if it is
supported by substantial evidence and contains no legal
error. Id.; see also Batson v. Comm'r Soc.
Sec. Admin, 359 F.3d 1190, 1993 (9th Cir. 2004).
evidence means “more than a mere scintilla” but
less than a preponderance. Sandqathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997). “[I]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). The court must consider the record as a whole,
weighing both the evidence that supports and detracts from
the Commissioner's conclusions. Desrosiers v.
Sec'y of Health & Human Services, 846 F.2d 573,
576 (9th Cir. 1988). If the evidence supports more than one
rational interpretation, the court must uphold the ALJ's
decision. Batson, 359 F.3d at 1193. When the
evidence is inconclusive, “questions of credibility and
resolution of conflicts in the testimony are functions solely
of the Secretary.” Sample v. Schweiker, 694
F.2d 639, 642 (9th Cir. 1982).
a reviewing court finds that substantial evidence supports
the ALJ's conclusions, the court must set aside the
decision if the ALJ failed to apply the proper legal
standards in weighing the evidence and reaching his or her
decision. Batson, 359 F.3d at 1193. Section 405(g)
permits a court to enter a judgment affirming, modifying or
reversing the Commissioner's decision. 42 U.S.C. §
405(g). The reviewing court may also remand the matter to the
Social Security Administration for further proceedings.
Summary of the ALJ's Findings
rendering his decision, the ALJ followed the
Commissioner's five step sequential evaluation process.
See C.F.R. § 404.1520. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful
activity since June 1, 2013. (AR 48).
two, the ALJ found that Plaintiff had the following severe
impairments: gastrointestinal impairments, chronic liver
disease, and cardiomyopathy. (Id.).
three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled one of the impairments listed in the
Commissioner's Listing of Impairments. (AR 50). (citing
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
after considering the entire record, the ALJ determined that
Plaintiff had the “residual functional capacity [(RFC)]
to perform medium work as defined in 20 C.F.R.
404.1567(c).” (AR 50). The Plaintiff would be
“limited to frequent climbing of stairs, ramps,
ladders, ropes, and scaffolds, balancing, stopping, kneeling,
crouching and crawling, must avoid concentrated exposure to
temperature extremes, vibration, pulmonary irritants and all
exposure to hazards, such as moving machinery and unprotected
heights.” (Id.). The ALJ said that his RFC
assessment was based on all the evidence with consideration
of the limitations and restrictions imposed by the combined
effects of ...