Jacque M. v. Saul

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.

         I.

         PROCEEDINGS

         Jacque M.^[1] (“plaintiff”) filed this action on March 26, 2019, seeking review of the Commissioner's^[2] denial of his application for Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before a Magistrate Judge on April 16, 2019, and April 17, 2019. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively “JS”) on December 11, 2019, that addresses their positions concerning the disputed issue in the case. The Court has taken the Joint Submission under submission without oral argument.

         II.

         BACKGROUND

         Plaintiff was born in 1971. [Administrative Record (“AR”) at 26, 332.] He has no past relevant work experience. [Id. at 26.]

         On December 31, 2012, plaintiff filed an application for SSI payments, alleging that he has been unable to work since March 1, 2004. [Id. at 15; see also id. at 332-53.] 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 168-70.] A hearing was held on November 5, 2014, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [Id. at 42-68.] A vocational expert (“VE”) also testified. [Id. at 65-68.] On November 21, 2014, the ALJ issued a decision concluding that plaintiff was not under a disability since December 31, 2012, the date the application was filed. [Id. at 131-41.] Plaintiff requested review of the ALJ's decision by the Appeals Council, which was granted on April 11, 2016. [Id. at 147-48.] The Appeals Council ordered the ALJ on remand to obtain additional evidence concerning plaintiff's 2014 complex elbow fracture and resulting surgery in March and June 2014. [Id. at 147.] On March 5, 2018, a remand hearing was held before the same ALJ, at which time plaintiff again appeared represented by an attorney and testified on his own behalf. [Id. at 69-97.] A medical expert (“ME”) and a different VE also testified. [Id. at 74-80, 86-97.] On March 23, 2018, the ALJ issued a decision again concluding that plaintiff was not under a disability since December 31, 2012, the date the application was filed. [Id. at 15-27.] On February 7, 2019, the Appeals Council denied plaintiff's request for review. [Id. at 1-5.] At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.984. 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 December 31, 2012, the application date. [AR at 18.] At step two, the ALJ concluded that plaintiff has the severe impairments of lumbar spine degenerative disc disease; history of asthma; right humerus fracture (status post-open reduction and internal fixation); depression; and anti-social personality disorder. [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 21.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)^[3] to perform a range of light work as defined in 20 C.F.R. § 416.967(b), ^[4] as follows:

[F]requent postural movements, occasional reaching/handling with his dominant right upper extremity, unrestricted fingering/feeling, performance of simple, repetitive tasks in non-public work setting, occasional interactions with co-workers and supervisors, and avoiding concentrate exposure to respiratory irritants (e.g. dust, fumes, chemicals, etc.).

[Id. at 22.] At step four, the ALJ concluded that plaintiff has no past relevant work. [Id. at 26.] 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 an “office helper” (Dictionary of Occupational Titles (“DOT”) No. 239.567-010), as a “mail clerk” (DOT No. 209.687-026), and as a “sales attendant” (DOT No. 299.677-010). [AR at 26-27.] ...