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Herghelian v. Saul

United States District Court, E.D. California

September 23, 2019

ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.




         Plaintiff Steve Herghelian ("Plaintiff) seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income under Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.[2]

         Having considered the parties' briefs, along with the entire record in this case, the Court finds that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence in the record and is not based on proper legal standards. Accordingly, the Court will direct that the Commissioner's determination be REVERSED AND REMANDED for further proceedings.


         Plaintiff filed an application for supplemental security income on July 10, 2014. AR 166-71.[3]Plaintiff alleged that he became disabled on March 14, 2006, due to lower back pain and depression. AR 292. Plaintiffs application was denied initially and on reconsideration. AR 137-41, 147-51. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ Daniel Healy held a hearing on December 9, 2016, and issued an order denying benefits on May 31, 2017. AR 13-24, 30-57. Plaintiff sought review of the ALJ's decision, which the Appeals Council denied, making the ALJ's decision the Commissioner's final decision. AR 1-6. This appeal followed.

         Hearing Testimony

         The ALJ held a hearing on December 9, 2016, in Stockton, California. Plaintiff appeared with his attorney, Jeffrey R. Duarte. Impartial Vocational Expert ("VE") Linda M. Ferra also appeared. AR 16, 32.

         In response to questions from the ALJ, Plaintiff confirmed that he last worked at In Home Supportive Services in 2006. Plaintiff affirmed that he could work full time now if the work would cater to his lower back injury. He had a worker's compensation type injury where he got hurt on the job, he filed a worker's compensation claim for his injury, and he still receives medical care. Although surgery has been recommended, he has refused surgery until his chances to get better improve. AR 34-36. Plaintiff also testified that he had surgery on his right knee in 2004 or 2005, but he still has trouble with the knee. It feels achy in the cold. AR 35-36. Plaintiff did not have any other physical issues. AR37. Although he smokes, he does not have any breathing problems and he has reduced his smoking to three cigarettes per day. AR38.

         When asked about his mental health issues, Plaintiff testified that he has been diagnosed with depression. He attends counseling, but does not take prescription medication. However, he takes medication for other issues like pain or inflammation. He does not have any side effects from his medications. AR 37-38.

         When asked about a normal day, Plaintiff testified that he will do things at home such as microwave things for himself, make his bed and put away light things. His family members do not have to help him do anything at home. He still drives about a total of an hour or two per week to the store and to doctor appointments. He does not have any other regular outside activities. When he is at home, he watches TV for an average of 10 hours each day. He does not have any regular hobbies. AR 39-41.

         When asked about his abilities, Plaintiff testified that he can sit about 45 minutes at a time before he needs to stretch, take medication, and massage the area that is hurting. He can stand for an hour without having to sit down. He can walk about 10 minutes before he will need to lie down for about five minutes. AR43.

         In response to questions from his attorney, Plaintiff testified that the problems with his back started as a work injury. He resolved the claim by keeping further medical care. His primary treating physician for the worker's compensation claim is Dr. Robson, who he began seeing in 2014. Plaintiff sees Dr. Robson for his back every month and Dr. Robson has prescribed medications including Naprosyn, Methadone, Cyclobenzaprine, Valexien and one other. AR 44-45.

         Plaintiff also had a right to medical care for his stress as part of his worker's compensation claim. He saw a psychologist for two years, but stopped seeing that doctor for personal reasons. He started care with a new doctor two months before the hearing. Plaintiff claimed stress as part of his work injury because he was having bad thoughts, like wanting to hurt himself. He attempted to act on those thoughts about nine months prior to the hearing, putting a gun to his mouth. He is now receiving treatment and went to a clinic when he was having thoughts of hurting himself. Plaintiff described his depression as being constantly sad, angry and thinking about killing himself every day. He was receiving medications to help with these symptoms, but the worker's compensation insurance stopped covering it. AR 45-48. Plaintiff further testified that the problems he is having physically and mentally affect his ability to focus on day-to-day tasks. They also affect his ability to complete tasks. For example, he will start to clean his room then stop in the middle and forget to finish doing it. AR 48-49.

         Following Plaintiffs testimony, the ALJ elicited testimony from VE Linda Ferra. For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff s same age, educational background and work history. This person could sit for six hours but stand and/or walk less then even two hours each, lift and/or carry less than 20 pounds even occasionally, could never climb, balance, stoop, kneel, crouch or crawl, would not have sufficient concentration ability for even simple routine tasks and would need numerous unscheduled rest breaks causing the employee to be away from the workstation and off task 15 percent of the work day. The VE testified that there were no full-time jobs that could be done. AR 52-53.

         For the second hypothetical, the ALJ asked the VE to assume an individual of Plaintiff s same age, education and work history. This person could work at jobs sitting six hours, standing/walking six hours each with normal breaks, lifting/carrying 20 pounds occasionally, 10 pounds frequently, could never climb ramps or stairs, could never work around hazards like moving dangerous machinery or unprotected heights, could not operate motor vehicles and could only work at jobs involving simple routine tasks. The VE testified that this person could perform Plaintiffs past work as a sales attendant. There also would other unskilled jobs in the national economy that he could perform, such as fast food worker (DOT 311.472-010) and housekeeping cleaner (DOT 323.687-014). AR 53-54.

         For the third hypothetical, the ALJ asked the VE to assume the same limitations as in hypothetical two, but that the person could have occasional contact with the public, co-workers and supervisors. AR 54. The VE testified that this person could not perform Plaintiff s past work, but there were other unskilled jobs in the national economy that this person could perform, such as housekeeping cleaner and packing line worker (DOT 753.687-038).

         Medical Record

         The relevant medical record will be referenced below as necessary to this Court's decision.

         The ALJ's Decision

         Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff was not disabled under the Social Security Act. AR 16-24. Specifically, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since July 8, 2014. The ALJ identified spinal impairment and depression as severe impairments. AR 18. The ALJ determined that the severity of Plaintiff s impairments did not meet or medically equal any of the listed impairments. AR 18-20. Based on a review of the entire record, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform a wide range of light work except that Plaintiff was limited to lifting/carrying 20 pounds occasionally and 10 pounds frequently, sitting six hours and standing/walking six hours in an eight-hour workday, could not climb ladders, ropes and scaffolds, could not work around hazards (moving dangerous machinery, unprotected heights, operating motor vehicles) and was limited to simple repetitive tasks. AR 20-22. With this RFC, the ALJ found that Plaintiff was capable of performing his past relevant work as sales clerk. Alternatively, the ALJ concluded that there were other jobs in the national economy that Plaintiff could perform, such as cleaner and fast food worker. AR 22-23. The ALJ therefore found that Plaintiff was not disabled under the Social Security Act. AR 24.


         Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla, " Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec 'y of Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).


         In order to qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Qua ...

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