United States District Court, S.D. California
REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT (ECF Nos. 15, 16)
N. BLOCK, UNITED STATES MAGISTRATE JUDGE
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
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.
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.)
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.
OF THE ALJ'S FINDINGS
rendering her decision, the ALJ followed the
Commissioner's five-step sequential evaluation process.
See 20 C.F.R. § 404.1520.
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.)
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.)
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.)
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.)
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.)
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.)
the ALJ concluded that plaintiff was not disabled. (AR 32.)
CLAIMS OF ERROR
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.)
ALJ erred in accepting the testimony of the VE at step five
of the sequential evaluation process. (See ECF No.
15 at 8-9.)
ALJ failed to provide clear and convincing reasons to reject
plaintiff's subjective testimony. (See ECF No.
15 at 9-12.)
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,