United States District Court, S.D. California
REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT (ECF NOS. 13, 14)
N. BLOCK United States Magistrate Judge.
Report and Recommendation is submitted to the Honorable
Thomas J. Whelan, United States District Judge, pursuant to
28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of
the United States District Court for the Southern District of
March 26, 2018, plaintiff filed a Complaint pursuant to 42
U.S.C. § 405(g) seeking judicial review of a decision by
the Commissioner of Social Security denying his application
for a period of disability and disability insurance benefits.
(ECF No. 1.)
pending before the Court and ready for decision are the
parties' cross-motions for summary judgment. For the
reasons set forth herein, the Court
RECOMMENDS that plaintiff's motion for
summary judgment be DENIED, that the
Commissioner's cross-motion for summary judgment be
GRANTED, and that Judgment be entered
affirming the decision of the Commissioner and dismissing
this action with prejudice.
1, 2016, plaintiff filed an application for a period of
disability and disability insurance benefits under Title II
of the Social Security Act, alleging disability beginning
November 1, 2015. (Certified Administrative Record
[“AR”] 323-24, 325-26.) After his claim was
denied initially and upon reconsideration (AR 255-58,
261-65), plaintiff requested an administrative hearing before
an administrative law judge (“ALJ”). (AR 268-69.)
An administrative hearing was held on August 15, 2017.
Plaintiff appeared at the hearing with counsel, and testimony
was taken from him and a vocational expert
(“VE”). (AR 194-222.)
reflected in his September 14, 2017 hearing decision, the ALJ
found that plaintiff had not been under a disability, as
defined in the Social Security Act, at any time from November
1, 2015, the alleged onset date, through December 31, 2016,
the date last insured. (AR 27-37.) On November 7, 2017,
plaintiff requested review of the ALJ decision. (AR 319-22.)
The ALJ's decision became the final decision of the
Commissioner on January 26, 2018, when the Appeals Council
denied plaintiff's request for review. (AR 1-4.) This
timely civil action followed.
OF THE ALJ'S FINDINGS
rendering his decision, the ALJ followed the
Commissioner's five-step sequential evaluation process.
See 20 C.F.R. § 404.1520. At step one, the
ALJ found that plaintiff had not engaged in substantial
gainful activity during the period from his alleged onset
date of November 1, 2015 through his date last insured of
December 31, 2016. (AR 29.)
two, the ALJ found that plaintiff had the following severe
impairments: left shoulder arthropathy, a depressive
disorder, an anxiety disorder, and posttraumatic stress
disorder (“PTSD”). (AR 29.)
three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the impairments
listed in the Commissioner's Listing of Impairments. (AR
the ALJ determined that, through the date last insured,
plaintiff had the residual functional capacity
(“RFC”) to perform medium work as defined in 20
C.F.R. § 404.1567(c), except as follows:
“[H]e is limited to frequent overhead reaching with the
non-dominant upper extremity and he is limited to
understanding, remembering, and carrying out simple, routine,
repetitive tasks, with standard industry work breaks every
two hours, to no interaction with the general public, and to
occasional work-related, non-personal, non-social interaction
with coworkers and supervisors involving no more than a brief
exchange of information or hand-off of product.” (AR
purposes of his step four determination, the ALJ adduced and
accepted the VE's testimony that a hypothetical person
with plaintiff's vocational profile and RFC would be
unable to perform the duties of plaintiff's past relevant
work. (AR 36.)
then proceeded to step five of the sequential evaluation
process. Based on the VE's testimony that a hypothetical
person with plaintiff's vocational profile and RFC could
perform the requirements of representative unskilled
occupations that existed in significant numbers in the
national economy (i.e., lab cleaner and housekeeping
cleaner), the ALJ found that plaintiff was not disabled. (AR
reflected in plaintiff's summary judgment motion, the
disputed issues that plaintiff is raising as the grounds for
reversal and remand are as follows:
Whether the ALJ erred in assessing the opinion of
plaintiff's treating psychiatrist, Dr. Nuhic.
Whether the post-hearing medical source statement of Dr.
Nuhic submitted to the Appeals Council warrants remand.
Whether the ALJ erred in evaluating plaintiff's
disability rating with the Department of Veteran Affairs
Whether the ALJ erred in his adverse credibility
42 U.S.C. § 405(g), this Court reviews the
Commissioner's decision to determine whether the
Commissioner's findings are supported by substantial
evidence and whether the proper legal standards were applied.
DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir.
1991). Substantial evidence means “more than a mere
scintilla” but less than a preponderance.
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Desrosiers v. Sec'y of Health & Human
Servs., 846 F.2d 573, 575-76 (9th Cir. 1988).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson, 402 U.S. at 401. This
Court must review the record as a whole and consider adverse
as well as supporting evidence. Green v. Heckler,
803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is
susceptible of more than one rational interpretation, the
Commissioner's decision must be upheld. Gallant v.
Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
the Court notes that, under the Commissioner's
regulations, an impairment is severe only if it
significantly limits the claimant's
physical or mental ability to do basic work activities.
See 20 C.F.R. § 405.1520(c) (emphasis added).
Basic work activities are “abilities and aptitudes
necessary to do most jobs, ” including mental
activities such as understanding, carrying out, and
remembering simple instructions; use of judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work
setting. See Social Security Ruling
(“SSR”) 85-28. Here, the ALJ did find at step two of
the sequential evaluation process that plaintiff had severe
mental impairments (i.e., a depressive disorder, an
anxiety disorder, and PTSD). (See AR 29.) The ALJ
proceeded to include limitations based on plaintiff's
mental impairments in his determination of plaintiff's
RFC. Specifically, the ALJ found that plaintiff was
“limited to understanding, remembering, and carrying
out simple, routine, repetitive tasks, with standard industry
work breaks every two hours, to no interaction with the
general public, and to occasional work-related, non-personal,
non-social interaction with coworkers and supervisors
involving no more than a brief exchange of information or
hand-off of product.” (See AR 31.)
in the Court's view, the real issues presented by
Disputed Issue Nos. 1, 3, and 4 is whether, in determining
plaintiff's mental RFC, (a) the ALJ failed to properly
consider the opinions of plaintiff's treating
psychiatrist, Dr. Nuhic, to the effect that plaintiff was
unable to work due to his mental condition, (b) the ALJ
failed to properly consider the VA's disability rating,
and (c) the ALJ failed to properly consider plaintiff's
subjective symptom testimony.
Reversal is not warranted based on the ALJ's alleged
failure to properly ...