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Michelle H. v. Saul

United States District Court, S.D. California

December 4, 2019

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

          REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 15, 16)

          ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE

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

         On October 10, 2018, 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 her application for a period of disability and disability insurance benefits. (See 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 GRANTED, that the Commissioner's cross-motion for summary judgment be DENIED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings.

         PROCEDURAL BACKGROUND

         On September 20, 2014, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability commencing May 14, 2013. (Administrative Record [“AR”] 17, 215-22.) After her application was denied initially and upon reconsideration (AR 138-42, 148-52), plaintiff requested an administrative hearing before an administrative law judge (“ALJ”). (AR 154-55.) An administrative hearing was held on June 26, 2017. Plaintiff appeared at the hearing with counsel, and testimony was taken from her and a vocational expert (“VE”). (AR 40-69.)

         As reflected in her October 18, 2017 hearing decision, the ALJ found that plaintiff had not been under a disability, as defined in the Social Security Act, at any time from her alleged onset date through March 31, 2017, her date last insured. (AR 17-32.) The ALJ's decision became the final decision of the Commissioner on August 31, 2018, when the Appeals Council denied plaintiff's request for review. (AR 1-4.) This timely civil action followed.

         SUMMARY OF THE ALJ'S FINDINGS

         In rendering her decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520.[2]

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of May 14, 2013 through her date last insured of March 31, 2017. (AR 20.)

         At step two, the ALJ found that plaintiff had the following severe impairments: cardiomyopathy; depression; anxiety; Hashimoto's thyroiditis; asthma; and right shoulder impingement. (AR 20.) As part of her step two determination, the ALJ further found that plaintiff's medically determinable impairments of lumbago and cervicalgia, goiter and esophagitis, and fibromyalgia were nonsevere. (See AR 20-21.)

         At step three, the ALJ found that, through plaintiff's date last insured, 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 22.)

         Next, the ALJ determined that, through the date last insured, plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1457(b)

“except standing and/or walking for 2 hours out of an 8-hour workday; occasionally climbing ramps and stairs but never climbing ladders, ropes or scaffolds; occasionally balancing, stooping, kneeling, crouching, and crawling; avoid concentrated exposure to extreme cold; avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation; occasionally reaching overhead with dominant right upper extremity; and simple routine repetitive work, not at a production pace.” (AR 23-24.)

         For purposes of her 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 past relevant work. (AR 30.)

         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 cashier, order clerk, and addressor, the ALJ found that plaintiff had not been under a disability at any time from May 14, 2013, the alleged onset date, through March 31, 2017, the date last insured. (AR 30-32.)

         Accordingly, the ALJ concluded that plaintiff was not disabled. (AR 32.)

         PLAINTIFF'S CLAIMS OF ERROR

         1. The ALJ's finding at step two of the sequential evaluation process that plaintiff's fibromyalgia, lumbago and cervicalgia were nonsevere is not supported by the record. (See ECF No. 15 at 4-8.)

         2. The ALJ erred in accepting the testimony of the VE at step five of the sequential evaluation process. (See ECF No. 15 at 8-9.)

         3. The ALJ failed to provide clear and convincing reasons to reject plaintiff's subjective testimony. (See ECF No. 15 at 9-12.)

         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, 80 ...


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