United States District Court, C.D. California, Eastern Division
JUAN C. P., Plaintiff,
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
L. ABRAMS UNITED STATES MAGISTRATE JUDGE.
(“plaintiff”) filed this action on March 7, 2019,
seeking review of the Commissioner's denial of his
application for Disability Insurance Benefits
(“DIB”). The parties filed Consents to proceed
before a Magistrate Judge on March 26, 2019, and March 29,
2019. Pursuant to the Court's Order, the parties filed a
Joint Submission (alternatively “JS”) on November
4, 2019, that addresses their positions concerning the
disputed issues in the case. The Court has taken the Joint
Submission under submission without oral argument.
was born in 1963. [Administrative Record (“AR”)
at 197.] He has past relevant work experience as a cook.
[Id. at 29, 64-65.]
2, 2015, plaintiff protectively filed an application for a
period of disability and DIB, alleging that he has been
unable to work since May 26, 2014. [Id. at 19;
see also id. at 197-98.] After his application was
denied initially and upon reconsideration, plaintiff timely
filed a request for a hearing before an Administrative Law
Judge (“ALJ”). [Id. at 115-17.] A
hearing was held on May 10, 2018, at which time plaintiff
appeared represented by an attorney, and testified on his own
behalf, with the assistance of a Spanish interpreter.
[Id. at 36-73.] A vocational expert
(“VE”) also testified. [Id. at 63-72.]
On June 1, 2018, the ALJ issued a decision concluding that
plaintiff was not under a disability from May 26, 2014, the
alleged onset date, through June 1, 2018, the date of the
decision. [Id. at 19-31.] Plaintiff requested review
of the ALJ's decision by the Appeals Council.
[Id. at 193-96.] When the Appeals Council denied
plaintiff's request for review on February 6, 2019
[id. at 1-7], the ALJ's decision became the
final decision of the Commissioner. See Sam v.
Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per
curiam) (citations omitted). This action followed.
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), this Court has authority to
review the Commissioner's decision to deny benefits. The
decision will be disturbed only if it is not supported by
substantial evidence or if it is based upon the application
of improper legal standards. Berry v. Astrue, 622
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
evidence . . . is ‘more than a mere scintilla[, ]'
. . . [which] means -- and means only -- ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Biestek v.
Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019)
(citations omitted); Revels v. Berryhill, 874 F.3d
648, 654 (9th Cir. 2017). “Where evidence is
susceptible to more than one rational interpretation, the
ALJ's decision should be upheld.” Revels,
874 F.3d at 654 (internal quotation marks and citation
omitted). However, the Court “must consider the entire
record as a whole, weighing both the evidence that supports
and the evidence that detracts from the Commissioner's
conclusion, and may not affirm simply by isolating a specific
quantum of supporting evidence.” Id. (quoting
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014) (internal quotation marks omitted)). The Court will
“review only 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.” Id.
(internal quotation marks and citation omitted); see also
SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87
L.Ed. 626 (1943) (“The grounds upon which an
administrative order must be judged are those upon which the
record discloses that its action was based.”).
THE EVALUATION OF DISABILITY
are “disabled” for purposes of receiving Social
Security benefits if they are unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted or is expected to last for a continuous period of at
least twelve months. Garcia v. Comm'r of Soc.
Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42
U.S.C. § 423(d)(1)(A)).
THE FIVE-STEP EVALUATION PROCESS
Commissioner (or ALJ) follows a five-step sequential
evaluation process in assessing whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920;
Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th
Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094,
1098-99 (9th Cir. 1999)). In the first step, the Commissioner
must determine whether the claimant is currently engaged in
substantial gainful activity; if so, the claimant is not
disabled and the claim is denied. Lounsburry, 468
F.3d at 1114. If the claimant is not currently engaged in
substantial gainful activity, the second step requires the
Commissioner to determine whether the claimant has a
“severe” impairment or combination of impairments
significantly limiting his ability to do basic work
activities; if not, a finding of nondisability is made and
the claim is denied. Id. If the claimant has a
“severe” impairment or combination of
impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing of
Impairments (“Listing”) set forth at 20 C.F.R.
§ 404, subpart P, appendix 1; if so, disability is
conclusively presumed and benefits are awarded. Id.
If the claimant's impairment or combination of
impairments does not meet or equal an impairment in the
Listing, the fourth step requires the Commissioner to
determine whether the claimant has sufficient “residual
functional capacity” to perform his past work; if so,
the claimant is not disabled and the claim is denied.
Id. The claimant has the burden of proving that he
is unable to perform past relevant work. Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the
claimant meets this burden, a prima facie case of
disability is established. Id. The Commissioner then
bears the burden of establishing that the claimant is not
disabled because there is other work existing in
“significant numbers” in the national or regional
economy the claimant can do, either (1) by the testimony of a
VE, or (2) by reference to the Medical-Vocational Guidelines
at 20 C.F.R. part 404, subpart P, appendix 2.
Lounsburry, 468 F.3d at 1114. The determination of
this issue comprises the fifth and final step in the
sequential analysis. 20 C.F.R. §§ 404.1520,
416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th
Cir. 1995); Drouin, 966 F.2d at 1257.
THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since May 26, 2014, the alleged
onset date. [AR at 21.] At step two, the ALJ concluded
that plaintiff has the severe impairments of degenerative
disc disease; sprain/strains of the lumbar-sacral and
cervical spine; and carpal tunnel syndrome of the bilateral
hands. [Id.] At step three, the ALJ determined that
plaintiff does not have an impairment or a combination of
impairments that meets or medically equals any of the
impairments in the Listing. [Id. at 25.] The ALJ
further found that plaintiff retained the residual functional
capacity (“RFC”) to perform medium work as defined
in 20 C.F.R. § 404.1567(c),  “except frequent
balancing, stooping, kneeling, crouching, and crawling;
frequent climbing of ramps and stairs; frequent handling and
fingering; and no climbing of ladders, ropes, or
scaffolds.” [Id.] At step four, based on
plaintiff's RFC and the testimony of the VE, the ALJ
concluded that plaintiff is able to perform his past relevant
work as a cook. [Id. at 29.] Accordingly, the ALJ
determined that plaintiff was not disabled at any time from
the alleged onset date of May 26, 2014, through June 1, 2018,
the date of the decision. [Id. at 31.]
THE ALJ'S DECISION
contends that the ALJ erred when he: (1) failed to properly
consider significant and relevant medical evidence of record
in assessing plaintiff's RFC; and (2) failed to properly
consider plaintiff's subjective symptom testimony. [JS at
4.] As set forth below, the Court agrees with plaintiff, in
part, and remands for further proceedings.
THE ALJ'S RFC DETERMINATION
is “an assessment of an individual's ability to do
sustained work-related physical and mental activities in a
work setting on a regular and continuing basis.” Soc.
Sec. Ruling (“SSR”) 96-9p, 1996 WL 374184, at *1
(1996). It reflects the most a claimant can do despite his
limitations. See Smolen v. Chater, 80 F.3d 1273,
1291 (9th Cir. 1996). An RFC must include an individual's
functional limitations or restrictions as a result of all of
his impairments -- even those that are not severe
(see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) --
and must assess his “work-related abilities on a
function-by-function basis.” SSR 96-9p, 1996 WL 374184,
at *1; see also Valentine v. Comm'r of Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC
that fails to take into account a claimant's limitations
is defective”). An ALJ errs when he provides an
incomplete RFC ignoring “significant and probative
evidence.” Hill v. Astrue, 698 F.3d 1153,
1161-62 (9th Cir. 2012) (further noting that the error is not
harmless when an ALJ fails to discuss significant and
probative evidence favorable to a claimant's position
because when the RFC is incomplete, the hypothetical question
presented to the VE is incomplete and, therefore, the
ALJ's reliance on the VE's answers is improper)). An
RFC assessment is ultimately an administrative finding
reserved to the Commissioner. 20 C.F.R. §
404.1527(d)(2). However, an RFC determination must be based
on all of the relevant evidence, including the diagnoses,
treatment, observations, and opinions of medical sources,
such as treating and examining physicians. Id.
§ 404.1545. A district court must uphold an ALJ's
RFC assessment when the ALJ has applied the proper legal
standard and substantial evidence in the record as a whole
supports the decision. See Bayliss v. Barnhart, 427
F.3d 1211, 1217 (9th Cir. 2005); Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
Dr. Bernabe's Opinion
argues that the ALJ erred when he gave “substantial
weight” to the December 2, 2015, opinion of orthopedic
consultative examiner, Vicente Bernabe, D.O., and discounted
the opinions of his treating orthopedic surgeon for
workers' compensation purposes, Dr. Khalid B. Ahmed. [JS
at 5 (citing AR at 28, 276-81).] He notes that counsel
objected at the hearing to any significant weight being given
to Dr. Bernabe's report for two reasons: first, in light
of the objective MRI evidence of plaintiff's cervical and
lumbar spines, counsel stated that “there's [no]
way it's realistic th[at] [plaintiff] could lift anywhere
near 50 pounds”; and, second, Dr. Bernabe “had
been terminated as a consultative examiner by the Defendant
Administration in the past for unsupportable medical
opinions.” [Id. (citing AR at 40).] Defendant
does not address plaintiff's assertion about Dr.
Bernabe's status with the administration, and plaintiff
provides no supporting evidence regarding his assertion
regarding Dr. Bernabe's alleged
“termination.” Plaintiff also argues that the ALJ
improperly gave substantial weight to the opinions of the
state agency medical consultants, “who simply adopted
Dr. Bernabe's findings and assessment.”
[Id. (citing AR at 80-81, 93-94).] Plaintiff further
argues that the ALJ's rejection of the opinions of
plaintiff's treating and workers' compensation
physician was “inappropriate, without legal authority,
and simply a manipulation of the evidence by this [ALJ] in
order to justify the finding of a medium [RFC] in this
case.” [Id. at 5-6.] He notes that because
plaintiff was 54 years old at the time of the ALJ's
decision, in order to deny plaintiff benefits “under
the appropriate medical vocational guidelines, ” the
ALJ must establish that plaintiff is able to perform his past
work as a cook and is limited to no less than light work.
[Id. at 6.]
notes Dr. Bernabe's findings, and generally cites to
cases holding that an examining physician's opinion alone
constitutes substantial evidence because it rests on an
independent examination, a consultative examiner need not
review all of the medical records because his examination is
itself substantial evidence, and the opinions of the
reviewing physicians can amount to substantial evidence, so
long as other ...