United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. 15,
RUTH BERMUDEZ MONTENEGRO, UNITED STATES MAGISTRATE JUDGE
Timothy K. ("Plaintiff) filed a Complaint pursuant to 42
U.S.C § 405(g) seeking judicial review of the final
decision of the Commissioner of the Social Security
Administration ("Defendant") denying Plaintiffs
application for Disability Insurance Benefits and
Supplemental Security Income under Titles II and XVI of the
Social Security Act (the "Act"). (Doc. 1.) Before
the Court are: Plaintiffs Motion for Summary Judgment,
seeking reversal of the Commissioners final decision and an
award of social security disability and supplemental security
income benefits, or alternatively, remand to the Social
Security Administration for further proceedings (Doc. 15);
Defendant's Cross-Motion for Summary Judgment and
Opposition to Plaintiffs Motion for Summary Judgment (Doc.
22); Plaintiffs Reply to Defendant's Opposition to
Plaintiffs Motion for Summary Judgment (Doc. 25); and
Defendant's Reply in Opposition to Plaintiffs Reply and
Opposition to Defendant's Cross-Motion for Summary
Judgment and in Support of Defendant's Motion for Summary
Judgment (Doc. 27).
matter was referred to the undersigned for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Civil Local Rule 72.1(c)(1)(c). After a thorough review of
the papers on file, the Administrative Record
("AR"), and the applicable law, this Court
respectfully recommends that Plaintiffs Motion for Summary
Judgment be GRANTED IN PART and
DENIED IN PART, Defendant's
Cross Motion for Summary Judment be DENIED IN
PART and GRANTED IN
PART, and that the matter be
REMANDED for further proceedings
before the Social Security Administration.
November 1, 2013, Plaintiff filed an application for
disability and disability insurance under Title II of the Act
(AR, at 195-199), and on December 28, 2015, Plaintiff
filed an application for Supplemental Security Income under
Title XVI of the Act (AR, at 200-206). Both applications
alleged disability beginning on July 1, 2012. (AR, at
195-199; 200-206.) After his claim was denied initially (AR,
at 130-133) and upon reconsideration (AR, at 136-140),
Plaintiff requested an administrative hearing before an
administrative law judge ("ALJ") (AR, at 141),
which was held on September 6, 2016 (AR, at 69-98). Plaintiff
appeared and was represented by counsel, and testimony was
taken from Plaintiff and John P. Kilcher, a vocational expert
("VE"). (AR, at 89-98).
November 3, 2016, the ALJ issued a written decision in which
he determined that Plaintiff was not disabled as defined in
the Act. (AR, at 52-62.) On January 2, 2017, Plaintiff sought
review of the decision by the Appeals Council. (AR, at
192-194.) On December 12, 2017, the Appeals Council denied
review of the ALJ's ruling, and the ALJ's decision
became the final decision of the Commissioner pursuant to 42
U.S.C. § 405(h). (AR, at 4-10.)
decision, the ALJ initially determined Plaintiff met the
insured status requirements of the Act through December 31,
2018. (AR, at 54.) The ALJ then followed the five-step
sequential evaluation process to determine whether Plaintiff
is disabled. See 20 C.F.R. §§ 404.1520(a),
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since November 29, 2014, the alleged onset
of disability. (AR, at 54.)
two, the ALJ found Plaintiff suffers from the following
severe impairments: degenerative disc disease of the spine,
degenerative joint disease, and headaches. (AR, at 54.)
three, the ALJ found Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1. (AR, at 57.)
the ALJ determined Plaintiff has the residual functional
capacity ("RFC") to perform light work as defined
in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
"except that he is further limited to occasional
postural activity, such as climbing, stooping, kneeling,
crouching, and crawling." (AR, at 58.)
purposes of his step four determination, the ALJ gave great
weight to the VE's testimony that Plaintiff had worked as
a "supervisor, maintenance for installation[, ]
[Dictionary of Occupational Titles ("DOT")] code
891.137.010," and that a hypothetical person with
Plaintiffs vocational profile would be able to perform the
exertional demands of Plaintiffs past work. (AR, at 62;
95-96.) The ALJ found Plaintiff "is capable of
performing past relevant work as an insulation
supervisor." (AR, at 61.)
the ALJ found Plaintiff "had not been under a
disability, as defined in the [Act], from November 29, 2014,
through the date of his decision" (AR, at 62.)
ISSUES IN DISPUTE
forth in the moving and opposition papers, the disputed
issues are as follows:
Whether the ALJ properly considered the medical evidence and
assessed an RFC consistent with the record as a whole. (Doc.
15-1, at 3-5; Doc. 23, at 9-18.)
Whether the ALJ properly found Plaintiff capable of
performing his past relevant work. (Doc. 15-1, at 5-6; Doc.
23, at 18-20.)
Whether the ALJ properly weighed the opinion of Plaintiffs
treating physician, Arsenio Jimenez, M.D. (Doc. 23, at 15-18;
Doc. 25, at 3-4.)
STANDARD OF REVIEW
provides for judicial review of a final agency decision
denying a claim for disability benefits in federal district
court. 42 U.S.C. § 405(g). "As with other agency
decisions, federal court review of social security decisions
is limited." Treichler v. Comm 'r soc.
Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A
federal court will uphold the Commissioner's disability
determination "unless it contains legal error or is not
supported by substantial evidence." Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,
1052 (9th Cir. 2006)). Substantial evidence means "more
than a mere scintilla, but less than a preponderance; it is
such relevant evidence as a reasonable person might accept as
adequate to support a conclusion." Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); Morgan
v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 599 (9th
reviewing whether the ALJ's decision is supported by
substantial evidence, the Court must consider the record as a
whole, "weighing both the evidence that supports and the
evidence that detracts from the Commissioner's
conclusion." Lingenfelter, 504 F.3d at 1035
(quoting Reddick v. Chater, 157 F.3d 715, 720 (9th
Cir. 1998)). The ALJ is responsible for "determining
credibility, resolving conflicts in medical testimony, and
for resolving ambiguities." Garrison, 759 F.3d
at 1010 (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
the evidence is susceptible to more than one rational
interpretation, the ALJ's conclusion must be upheld.
Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d
1190, 1193 (9th Cir. 2004); see also Ryan v. Comm 'r
Soc. Sec, 528 F.3d 1194, 1198 (9th Cir. 2008). Stated
differently, when the evidence "can reasonably support
either affirming or reversing a decision, [the Court] may not
substitute [its] judgment for that of the [ALJ]";
rather, the Court only reviews "the reasons provided by
the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely."
Garrison, 759 F.3d at 1010 (quoting Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). Further,
when medical reports are inconclusive, questions of
credibility and resolution of conflicts in the testimony are
the exclusive functions of the ALJ. Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989). It is not
within the Court's province to reinterpret or re-evaluate
the evidence, even if a re-evaluation may reasonably result
in a favorable outcome for the plaintiff. Batson,
359 F.3d at 1193.
THE ALJ FAILED TO PROPERLY CONSIDER THE MEDICAL EVIDENCE IN
MAKING HIS RFC DETERMINATION.
submitted medical reports from two state consultative
examiners, Thomas J. Sabourin, M.D. and Zavan Bilezikjian,
M.D., both orthopedic specialists, to support Plaintiffs
claim of disability. Dr. Bilezikjian recommended several
postural and exertional limitations, but the ALJ failed to
address those additional limitations in the decision.
contends the ALJ's RFC determination is not supported by
the record as a whole because the ALJ failed to identify any
reasoning for rejecting the additional limitations by Dr.
Bilezikjian. (Doc. 15, at 3.) Defendant responds that the
ALJ's RFC determination is supported by the record as a
whole because he gave greater weight to two consistent
orthopedic specialist consultative examiners' opinions,
the physical examination findings, and the overall treatment
regimen. (Doc. 23, at 3.) For the reasons outlined below, the
Court finds that the ALJ erred by failing to provide
specific, legitimate reasons for rejecting Dr.
Bilezikjian's additional limitations.
is not required to accept each limitation recommended by
physicians. Ryan, 528 F.3d at 1198. But "[i]f a
treating or examining doctor's opinion is contradicted by
another doctor's opinion, an ALJ may only reject it by
providing specific and legitimate reasons that are supported
by substantial evidence." Id. "This is so
because, even when contradicted, a treating or examining
physician's opinion is still owed deference and will
often be entitled to the greatest weight. . . even if it does
not meet the test for controlling weight."
Garrison, 759 F.3d at 1012 (internal citations and
quotations omitted). An ALJ can satisfy the substantial
evidence requirement by "setting out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings." Reddick, 157 F.3d at 725. "The
ALJ must do more than state conclusions. He must set forth
his own interpretations and explain why they, rather than the
doctors', are correct." Id. (internal
ALJ does not explicitly reject a medical opinion or set forth
specific, legitimate reasons for crediting one medical
opinion over another, he errs. See Nguyen v. Chater,
100 F.3d 1462, 1464 (9th Cir. 1996.) "In other words, an
ALJ errs when he rejects a medical opinion or assigns it
little weight while doing nothing more than ignoring it,
asserting without explanation that another medical opinion is
more persuasive, or criticizing it with boilerplate language
that fails to offer a substantive basis for his
conclusion." Garrison, 759 F.3d at 1012-13.
The Inconsistent Consultative Examiner Reports.
submitted reports from Dr. Sabourin (AR, at 445-449) and Dr.
Bilezikjian (AR, at 475-479) in ...