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Juan S. v. Saul

United States District Court, C.D. California

September 16, 2019

JUAN S., [1]Plaintiff
ANDREW M. SAUL, Commissioner of Social Security, [2]Defendant.




         Plaintiff Juan S. (“Plaintiff”) filed a complaint seeking review of the decision of the Commissioner of Social Security denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). [Dkt. 1.] The parties filed consents to proceed before the undersigned United States Magistrate Judge [Dkt. 12, 13] and briefs addressing a disputed issue in the case [Dkt. 25 (“Pl.'s Br.”) & Dkt. 27 (“Def.'s Br.”)]. The Court has taken the parties' briefing under submission without oral argument. For the reasons set forth below, the Court affirms the decision of the ALJ and orders that judgment be entered accordingly.


         In 2012, Plaintiff filed applications for DIB and SSI, alleging disability commencing on September 16, 2009. [Dkt. 16, Administrative Record (“AR”) 264, 275, 758.] Plaintiff's claims for benefits were denied initially, upon reconsideration, and following a hearing before Administrative Law Judge Alan J. Markiewicz. [AR 18-31, 38-64, 110-14, 120-23.] After the Appeals Council denied review, Plaintiff filed a civil complaint in this Court. [AR 849-50.] On September 15, 2016, this Court issued a Judgment and Order remanding the matter for further consideration of Plaintiff's fibromyalgia condition. [AR at 848-66.] The Appeals Council then remanded the matter for additional proceedings. [AR 867-68.]

         On February 9, 2018, Plaintiff had his second administrative hearing. [AR 782-819.] On May 16, 2018, Administrative Law Judge Marti Kirby (“ALJ”) issued an unfavorable decision applying the five-step sequential evaluation process to find Plaintiff not disabled. [AR 758-74]; see 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). The ALJ determined that Plaintiff met the insured status requirements for DIB through December 31, 2014. At step one, the ALJ concluded that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. [AR 760.] At step two, the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease of the cervical spine; cervical radiculopathy; osteoarthritis of the left thumb; bilateral carpal tunnel syndrome; degenerative disc disease of the lumbar spine; and fibromyalgia. [Id.] At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. [AR 763]; see 20 C.F.R. part 404, subpart P, appendix 1. Next, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) for a range of light work and was able to: lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds frequently; stand and/or walk 6 hours in an 8-hour workday; sit for 6 hours in an 8hour workday; balance frequently; handle, finger and reach frequently; perform postural activities, use foot pedals bilaterally, climb steps, and interact with the public occasionally; and concentrate for up to 2-hours at a time. [AR 763 (citing 20 C.F.R. §§ 404.1567(b), 416.967(b)).] The ALJ further found that Plaintiff is limited to performing unskilled work and is precluded from climbing ladders, ropes, and scaffolds, working at unprotected heights, and reaching over the shoulder bilaterally. [AR 763.] At step four, the ALJ found that Plaintiff is not able to perform his past relevant work as a delivery driver, sander/buffer, or hand sander. [AR 772.] At step five, the ALJ found that Plaintiff is able to perform other work that exists in significant numbers in the economy. [AR 773-74.] This action followed.

         Plaintiff contends that the ALJ failed to properly consider substantial and relevant medical evidence in assessing Plaintiff's RFC. [Pl. Br. at 5-13.] The Commissioner asserts that the ALJ's decision should be affirmed. [Def. Br. at 2-5.]


         Under 42 U.S.C. § 405(g), the Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). “Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted).

         The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 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). The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists if the error is “inconsequential to the ultimate nondisability determination, or if despite the legal error, the agency's path may reasonably be discerned.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).


         Plaintiff contends that the ALJ failed to properly consider the work limitations assessed by the nonexamining medical expert, Dr. Arnold Ostrow. [Pl. Br. at 5-13.] The Court disagrees.

         A. Background

         Dr. Ostrow testified as the medical expert at Plaintiff's February 2018 hearing. [AR 788-99.] Dr. Ostrow reported that Plaintiff has the medically determinable impairments of cervical disc degenerative disease, osteoarthritis of the left thumb, fracture of the left distal radius, bilateral carpal tunnel syndrome, lumbosacral disc degenerative disease, and fibromyalgia. [AR 768, 770, 790.] Dr. Ostrow opined, in part, that Plaintiff was limited to occasional fingering, handling, and gripping bilaterally and occasional reaching in all directions. [AR 792.] Dr. Ostrow also testified that Plaintiff would have varying levels of pain from his impairments and could miss 1 to 2 days of a work a ...

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