United States District Court, E.D. California
ORDER REVERSING AGENCY'S DENIAL OF BENEFITS AND
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
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.
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.
AND PRIOR PROCEEDINGS
filed an application for supplemental security income on July
10, 2014. AR 166-71.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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
relevant medical record will be referenced below as necessary
to this Court's decision.
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.
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).
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 ...