Timothy K. v. Saul

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. 15, 22.]

          HON. RUTH BERMUDEZ MONTENEGRO, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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).

         The 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.

         II. PROCEDURAL BACKGROUND

         On November 1, 2013, Plaintiff filed an application for disability and disability insurance under Title II of the Act (AR, at 195-199^[2]), 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).

         On 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.)

         III. ALJ'S FINDINGS

         In his 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), 416.920(a).

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since November 29, 2014, the alleged onset of disability^[3]. (AR, at 54.)

         At step 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.)

         At step 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.)

         Next, 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.)

         For 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.)

         Accordingly, 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.)

         IV. ISSUES IN DISPUTE

         As set forth in the moving and opposition papers, the disputed issues are as follows:

         1. 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.)

         2. Whether the ALJ properly found Plaintiff capable of performing his past relevant work. (Doc. 15-1, at 5-6; Doc. 23, at 18-20.)

         3. 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.)

         V. STANDARD OF REVIEW

         The Act 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 Cir. 2003).

         In 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)).

         When 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.

         VI. DISCUSSION

         A. THE ALJ FAILED TO PROPERLY CONSIDER THE MEDICAL EVIDENCE IN MAKING HIS RFC DETERMINATION.

         Plaintiff 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.

         Plaintiff 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.

         An ALJ 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 citations omitted).

         When an 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.

         1. The Inconsistent Consultative Examiner Reports.

         Plaintiff submitted reports from Dr. Sabourin (AR, at 445-449) and Dr. Bilezikjian (AR, at 475-479) in ...