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Abelardo H. v. Saul

United States District Court, S.D. California

November 12, 2019

ABELARDO H., Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [1]Defendant.

          REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 14, 17)

          ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to the Honorable Jeffrey T. Miller, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         On February 1, 2019, plaintiff filed a complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying his application for Supplemental Security Income (“SSI”). (ECF No. 1.)

         Now pending before the Court and ready for decision are the parties' cross-motions for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that the Commissioner's cross-motion for summary judgment be GRANTED, and that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice.

         PROCEDURAL BACKGROUND

         On January 29, 2015, plaintiff protectively filed an application for SSI under Title XVI of the Social Security Act, alleging disability commencing November 29, 2014. (Certified Administrative Record [“AR”] 276-84; see also AR 147.) The application was denied initially and upon reconsideration. (AR 158-62, 168-72.) Plaintiff then requested an administrative hearing before an Administrative Law Judge (“ALJ”). (AR 174-76.) Hearings were held before the same ALJ on March 14, 2017, August 21, 2017, and January 2, 2018. (AR 31-57, 58-112, 113-40.) Plaintiff was represented by counsel at all three hearings, and testimony was taken from him, two medical experts, and three vocational experts. (See id.) The ALJ issued a decision on February 22, 2018, finding that plaintiff was not disabled for purposes of his benefits application. (AR 15-24.) Thereafter, plaintiff requested a review of the decision by the Appeals Council. (AR 275.) The ALJ's decision became the final decision of the Commissioner on November 28, 2018, when the Appeals Council denied plaintiff's request for review. (AR 1-6.) This timely civil action followed.

         SUMMARY OF THE ALJ'S FINDINGS

         In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since January 29, 2015, the application date.[2](AR 17.)

         At step two, the ALJ found that plaintiff had the following severe impairments: diverticulitis and related gastrointestinal impairments; degenerative disc disease; morbid obesity; and osteoarthritis of the hips and knees. (AR 17.)[3]

         At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (AR 19.)

         Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) to perform sedentary work as defined in the Commissioner's regulations and specifically:

“the claimant can stand and/or walk for one to two hours in a workday; the claimant can occasionally climb ramps and stairs; the claimant can occasionally balance, stoop, kneel, crouch and crawl; the claimant cannot climb ladders, ropes or scaffolds; the claimant must avoid all exposure to hazards, such as moving machinery and unprotected heights; the claimant cannot drive; the claimant is limited to understanding, remembering and carrying out simple, routine, repetitive tasks, with standard industry work breaks every two hours; the claimant can have no interaction with the general public and the claimant can have occasional work related, non-personal, non-social interaction with coworkers and supervisors involving no more than a brief exchange of information or hand off of product.” (AR 19.)

         For purposes of his step four determination, the ALJ adduced and accepted the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC would not be able to perform the requirements of plaintiff's past relevant work. Accordingly, the ALJ found that plaintiff was unable to perform any of his past relevant work. (AR 22.)

         The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC could perform the requirements of representative occupations that existed in significant numbers in the national economy such as a document preparer and assembler, the ALJ found that plaintiff had not been under a disability, as defined in the Social Security Act, since January 29, 2015, the date his application was filed. (AR 23-24.)

         PLAINTIFF'S CLAIMS OF ERROR

         1. The ALJ erred by failing to find plaintiff meets or equals Listing 5.06(B) for inflammatory bowel disease due to his complicated diverticulitis.

         2. The ALJ erred by failing to find plaintiff meets or equals Listing 1.04(A) for disorders of the spine.

         3. The ALJ improperly discredited the opinions of plaintiff's treating physician, Dr. Egisto Salerno.[4]

         STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

         DISCUSSION

         I. Reversal is not warranted based on the ALJ's Listings determination.

         A. Law relating to Listings determinations

         In 20 C.F.R. Part 404, Subpart P, Appendix 1, the Commissioner has set forth certain impairments that are presumed to be of sufficient severity to prevent the performance of work. See 20 C.F.R. § 416.925(a). At step three of the Commissioner's sequential evaluation process, the ALJ must determine whether a claimant's impairment or combination of impairments meets or equals a listed impairment. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If a claimant has an impairment ...


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