United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
seeks judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”), denying his
application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act
(“the Act”), 42 U.S.C. §§
401-34. For the reasons that follow,
plaintiff's motion for summary judgment will be GRANTED,
and defendant's cross-motion for summary judgment will be
DENIED. The matter will be reversed and remanded to the
Commissioner for further proceedings.
applied for DIB on August 27, 2014. Administrative Record
(“AR”) 18. The disability onset date was alleged to
be October 30, 2011. Id. The application was
disapproved initially and on reconsideration. Id. On
May 1, 2017, ALJ Michael Cabotaje presided over the hearing
on plaintiff's challenge to the disapprovals. AR 41 - 90
(transcript), 91 (exhibits). Plaintiff, who appeared with his
representative Richard Whitaker, was present at the hearing.
AR 41. Bernard Preston, a Vocational Expert
(“VE”), also testified at the hearing.
August 8, 2017, the ALJ found plaintiff “not
disabled” under Sections 216(i) and 223(d) of Title II
of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 18-30
(decision), 31-35 (exhibit list). On June 29, 2018, after
receiving Exhibit 14B, Request for review from Wade Askew,
and Exhibit 18E, Letter from claimant's representative,
as additional exhibits, the Appeals Council denied
plaintiff's request for review, leaving the ALJ's
decision as the final decision of the Commissioner of Social
Security. AR 1-5 (decision and additional exhibit list).
filed this action on August 30, 2018. ECF No. 1; see 42
U.S.C. § 405(g). The parties consented to the
jurisdiction of the magistrate judge. ECF Nos. 7, 9. The
parties' cross-motions for summary judgment, based upon
the Administrative Record filed by the Commissioner, have
been fully briefed. ECF Nos. 14 (plaintiff's summary
judgment motion), 21 (Commissioner's summary judgment
motion), 24 (plaintiff's reply).
was born on in in March of 1961, and accordingly was, at age
54, defined as an individual closely approaching advanced
age, on the date last insured. AR 55. Plaintiff has at least a
high school education, and can communicate in English. AR 99,
220. Plaintiff worked as an iron worker contractor from
1996-2011. AR 222.
Commissioner's decision that a claimant is not disabled
will be upheld “if it is supported by substantial
evidence and if the Commissioner applied the correct legal
standards.” Howard ex rel. Wolff v. Barnhart,
341 F.3d 1006, 1011 (9th Cir. 2003). “‘The
findings of the Secretary as to any fact, if supported by
substantial evidence, shall be conclusive . . ..'”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995) (quoting 42 U.S.C. § 405(g)).
evidence is “more than a mere scintilla, ” but
“may be less than a preponderance.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It
means such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks omitted). “While inferences from the record can
constitute substantial evidence, only those ‘reasonably
drawn from the record' will suffice.” Widmark
v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)
(citation omitted). Although this court cannot substitute its
discretion for that of the Commissioner, the court
nonetheless must review the record as a whole,
“weighing both the evidence that supports and the
evidence that detracts from the [Commissioner's]
conclusion.” Desrosiers v. Secretary of HHS,
846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler,
760 F.2d 993, 995 (9th Cir. 1985) (“The court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion; it may not affirm
simply by isolating a specific quantum of supporting
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). “Where the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However,
the court may review only the reasons stated by the ALJ in
his decision “and may not affirm the ALJ on a ground
upon which he did not rely.” Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007); Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It
was error for the district court to affirm the ALJ's
credibility decision based on evidence that the ALJ did not
court will not reverse the Commissioner's decision if it
is based on harmless error, which exists only when it is
“clear from the record that an ALJ's error was
‘inconsequential to the ultimate nondisability
determination.'” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting
Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir.
2006)); see also Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005).
Insurance Benefits and Supplemental Security Income are
available for every eligible individual who is
“disabled.” 42 U.S.C. §§
402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff is
“disabled” if she is “‘unable to
engage in substantial gainful activity due to a medically
determinable physical or mental impairment . . ..'”
Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting
identically worded provisions of 42 U.S.C. §§
Commissioner uses a five-step sequential evaluation process
to determine whether an applicant is disabled and entitled to
benefits. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20,
24-25 (2003) (setting forth the “five-step sequential
evaluation process to determine disability” under Title
II and Title XVI). The following summarizes the sequential
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is not disabled. If not,
proceed to step two.
20 C.F.R. § 404.1520(a)(4)(i), (b).
Step two: Does the claimant have a “severe”
impairment? If so, proceed to step three. If not, the
claimant is not disabled.
Id. §§ 404.1520(a)(4)(ii), (c).
Step three: Does the claimant's impairment or combination
of impairments meet or equal an impairment listed in 20
C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is
disabled. If not, proceed to step four.
Id. §§ 404.1520(a)(4)(iii), (d).
Step four: Does the claimant's residual functional
capacity make him capable of performing his past work? If so,
the claimant is not disabled. If not, proceed to step five.
Id. §§ 404.1520(a)(4)(iv), (e), (f).
Step five: Does the claimant have the residual functional
capacity perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.
Id. §§ 404.1520(a)(4)(v), (g).
claimant bears the burden of proof in the first four steps of
the sequential evaluation process. 20 C.F.R. §§
404.1512(a) (“In general, you have to prove to us that
you are blind or disabled”), 416.912(a) (same);
Bowen, 482 U.S. at 146 n.5. However, “[a]t the
fifth step of the sequential analysis, the burden shifts to
the Commissioner to demonstrate that the claimant is not
disabled and can engage in work that exists in ...