Thomas M. S. v. Saul

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE

         I.

         PROCEEDINGS

         Thomas M. S.^[1] (“plaintiff”) filed this action on March 23, 2019, seeking review of the Commissioner's^[2] denial of his application for Supplemental Security Income payments (“SSI”). The parties filed Consents to proceed before a Magistrate Judge on April 10, 2019, and April 11, 2019. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively “JS”) on December 2, 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 1966. [Administrative Record (“AR”) at 33, 249.] He has no past relevant work experience. [Id. at 33, 72.]

         On October 2, 2014, plaintiff filed an application for SSI payments, alleging that he has been unable to work since August 1, 1984. [Id. at 249-54.] 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 143-45.] A hearing was held on December 22, 2017, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [Id. at 41-78.] A vocational expert (“VE”) also testified. [Id. at 71-74.] On March 12, 2018, the ALJ issued a decision concluding that plaintiff was not under a disability since October 2, 2014, the date the application was filed. [Id. at 23-35.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [Id. at 248.] When the Appeals Council denied plaintiff's request for review on February 27, 2019 [id. at 1-5], 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 no past relevant work. [AR at 33.] At step two, the ALJ concluded that plaintiff has the severe impairments of status post head trauma; posttraumatic seizures; affective disorder; and organic mental disorder. [Id. at 25.] 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 26.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)^[3] to perform medium work as defined in 20 C.F.R. § 416.967(c) as follows:^[4]

[He can] never climb ladders, ropes or scaffolds; must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. and all exposure to hazards such as machinery and heights; able to understand, remember and carry out simple one and two step instructions; able to maintain concentration[, ] persistence and pace for periods of two hours, perform activities within a schedule, maintain regular attendance, be punctual, and complete a normal workday and workweek, and make simple work-related decisions; limited to infrequent contact with the public but able to relate adequately to coworkers and supervisors; [he] can ask simple questions, request assistance, accept instructions, and respond appropriately to criticism from supervisors; and would also be able to respond appropriately to changes in the work setting and be aware of normal hazards.

[Id. at 28.] At step four, the ALJ concluded that plaintiff has no past relevant work. [Id. at 33.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as a “laborer, stores” (Dictionary of Occupational Titles (“DOT”) No. 922.687-058), as a “machine feeder” (DOT No. 699.686-010), and as a “hand packager” (DOT No. 920.587-018). [AR at 34.] Accordingly, the ALJ determined that plaintiff was not disabled at any time since October 2, 2014, the date the application was filed. [Id. at 35.]

         V.

         THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when he: (1) failed to properly consider the totality and severity of plaintiff's mental impairments and resulting mental limitations; and (2) failed to properly consider plaintiff's subjective symptom testimony. [JS at 4.] As set forth below, the Court agrees with plaintiff and remands for further proceedings.

         A. ...