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Juan C. P. v. Saul

United States District Court, C.D. California, Eastern Division

November 14, 2019

JUAN C. P., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I. PROCEEDINGS

         Juan C. P.[1] (“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.

         II. BACKGROUND

         Plaintiff was born in 1963. [Administrative Record (“AR”) at 197.] He has past relevant work experience as a cook. [Id. at 29, 64-65.]

         On June 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.

         III. STANDARD OF REVIEW

         Pursuant 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).

         “Substantial 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.”).

         IV. THE EVALUATION OF DISABILITY

         Persons 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)).

         A. THE FIVE-STEP EVALUATION PROCESS

         The 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.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since May 26, 2014, the alleged onset date.[2] [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”)[3] to perform medium work as defined in 20 C.F.R. § 404.1567(c), [4] “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.]

         V. THE ALJ'S DECISION

         Plaintiff 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.

         A. THE ALJ'S RFC DETERMINATION

         1. Legal Standard

         An RFC 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”)[5] 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).

         2. Dr. Bernabe's Opinion

         Plaintiff 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.”[6] 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.]

         Defendant 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 ...


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