(SS) Barnes v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELLY MARIE BARNES, No. 2:18-CV-0611-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties (ECF Nos. 9 and 11), this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c). Pending before the court are the parties’ briefs on the merits (ECF Nos. 20 and 23 24).1 24 / / / 25 / / / 26 / / / 27 1 Defendant’s opening brief is styled as a motion for voluntary remand and opposition to plaintiff’s brief. According to defendant, the parties were unable to agree on terms 28 of a voluntary remand by stipulation. 1 The court reviews the Commissioner’s final decision to determine whether it is: 2 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 3 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 4 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 5 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 6 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 7 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 8 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 9 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s 10 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 11 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 12 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 13 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 15 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 17 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 18 Cir. 1988). 19 For the reasons discussed below, the matter will be remanded for further 20 proceedings. 21 22 I. THE DISABILITY EVALUATION PROCESS 23 To achieve uniformity of decisions, the Commissioner employs a five-step 24 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 25 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 26 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 27 not disabled and the claim is denied; 28 / / / 1 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 2 impairment; if not, the claimant is presumed not disabled and the claim is denied; 3 Step 3 If the claimant has one or more severe impairments, 4 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 5 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 6 Step 4 If the claimant’s impairment is not listed in the regulations, 7 determination whether the impairment prevents the claimant from performing past work in light of the 8 claimant’s residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied; 9 Step 5 If the impairment prevents the claimant from performing 10 past work, determination whether, in light of the claimant’s residual functional capacity, the claimant can engage in 11 other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and 12 the claim is denied. 13 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 14 To qualify for benefits, the claimant must establish the inability to engage in 15 substantial gainful activity due to a medically determinable physical or mental impairment which 16 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 17 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 18 impairment of such severity the claimant is unable to engage in previous work and cannot, 19 considering the claimant’s age, education, and work experience, engage in any other kind of 20 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 21 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 22 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 23 The claimant establishes a prima facie case by showing that a physical or mental 24 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 25 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 26 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 27 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 28 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 1 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 2 3 II. THE COMMISSIONER’S FINDINGS 4 Plaintiff applied for social security benefits on June 4, 2014. See CAR 17.2 In the 5 application, plaintiff claims disability began on January 1, 2008. See id. Plaintiff’s claim was 6 initially denied. Following denial of reconsideration, plaintiff requested an administrative 7 hearing, which was held on March 8, 2017, before Administrative Law Judge (ALJ) Peter F. 8 Belli. In an April 19, 2017, decision, the ALJ concluded plaintiff is not disabled based on the 9 following relevant findings: 10 1. The claimant has the following severe impairment(s): insomnia, incontinence, depression, bipolar disorder, and anxiety disorder; 11 2. The claimant does not have an impairment or combination of 12 impairments that meets or medically equals an impairment listed in the regulations; 13 3. The claimant has the following residual functional capacity: the 14 claimant can perform medium work; she can lift and carry 50 pounds occasionally and 20 pounds frequently; she can push and 15 pull as much as she can lift and carry; she can sit 8 hours in an 8- hour workday; she can stand and/or walk 6 hours in an 8-hour 16 workday; she can occasionally climb ladders, ramps, or scaffolds; she cannot have concentrated exposure to dust, fumes, or gases; 17 she is able to understand, carry out, and remember simple jobs; she can occasionally understand, carry out, and remember detailed but 18 never complex instructions; she is able to interact with the general public, co-workers, and supervisors; she is able to maintain 19 attendance and work schedules; she is able to adjust to simple changes in the workplace; and she is able to make simple 20 workplace judgments; 21 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, the 22 claimant is capable of performing her past relevant work and of making an adjustment to other jobs that exist in significant 23 numbers in the national economy. 24 See id. at 19-29. 25 After the Appeals Council declined review on February 23, 2018, this appeal followed. 26 / / / 27 2 Citations are the to the Certified Administrative Record (CAR) lodged on 28 November 6, 2018 (ECF No. 16). 1 III. DISCUSSION 2 In her opening brief, plaintiff argues the ALJ erred throughout the sequential 3 evaluation process and requests the court remand for calculation and payment of benefits, not 4 further disability determination proceedings. In response, defendant concedes error and agrees a 5 remand is appropriate. Specifically, defendant “agrees that the ALJ did not adequately evaluate 6 evidence relating to Plaintiff’s urinary incontinence,” such as plaintiff’s subjective statements and 7 the medical evidence. Defendant, however, opposes a remand for calculation and payment of 8 benefits. Rather, defendant contends the matter should be remanded for further proceedings to 9 determine whether plaintiff is disabled. 10 The parties agree the ALJ’s analysis is flawed and that a remand is necessary. The 11 dispute centers on the nature of that remand – defendant seeks a remand for further proceedings 12 limited to the issue of plaintiff’s urinary incontinence and contends all other issues are rendered 13 moot; plaintiff seeks a remand for payment of benefits without any further proceedings to 14 determine disability. 15 At the outset, the court notes that defendant’s position is somewhat inconsistent. 16 Defendant encourages this court to conclude the claims raised by plaintiff other than those 17 relating to urinary incontinence are rendered moot by a limited remand. Presumably, defendant is 18 keen to avoid an adverse decision from this court on errors defendant does not concede. Though 19 defendant would have the court declare issues mooted by a remand, defendant also seeks a 20 remand limited to a single impairment. These positions are incompatible because a remand 21 limited to the urinary incontinence issue would not necessarily render all of plaintiff’s other 22 claims related to the current decision moot. Therefore, to the extent the court concludes such a 23 remand is appropriate, the remand will not be limited. 24 The remaining issue for this court is whether the case should be remanded for 25 further disability determination proceedings or for calculation and payment of benefits. Plaintiff 26 contends: 27 42 U.S.C. § 405(g), sentence four, gives this Court the discretion to direct a finding of disability and remand solely for calculation and 28 payment of benefits. Most often, the analysis over how to remand centers 1 around the “credit as true” rule. Under the “credit as true rule” remand solely for calculation of benefits is appropriate when (1) the record has 2 been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 3 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as 4 true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F. 3d 995, 1020 (9th Cir. 2014). 5 According to defendant: 6 . . .Circuit law allows a court to credit certain evidence as “true” 7 and award benefits under very limited circumstances. Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017), as amended (Jan. 25, 2018) (“An 8 automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule.”) 9 (emphasis added); Treichler, 775 F.3d at 1099 (remand for further proceedings is “the proper course, except in rare circumstances” in Social 10 Security cases). Specifically, a court may credit certain evidence as “true” and award benefits if: (1) an ALJ failed to provide legally sufficient 11 reasons for rejecting evidence; (2) there are no outstanding issues on which further proceedings in the administrative court would be useful; and 12 (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Burrell v. Colvin, 775 13 F.3d 1133, 1141 (9th Cir. 2014); Leon, 880 F.3d at 1044–45; Treichler, 775 F.3d at 1103–04. A claimant, however, “is not entitled to benefits 14 under the statute unless [she] is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Strauss v. Comm’r, 635 F.3d 1135, 15 1138 (9th Cir. 2011) (emphasis added); Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“The touchstone for an award of benefits is the 16 existence of a disability, not the agency’s legal error.”) (emphasis added). As such, courts must remand for further proceedings if “an evaluation of 17 the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014); Burrell, 18 775 F.3d at 1141 (there is no need to evaluate whether “the three preliminary requirements” of the rule are met if the record contains 19 “serious doubt” that the claimant is disabled). 20 The court does not find a remand for an award of benefits is warranted because 21 there remain issues to be developed. In particular, and as the parties agree, issues regarding 22 plaintiff’s urinary incontinence have not been adequately resolved. For this reason, the court will 23 remand this matter for further proceedings. 24 / / / 25 / / / 26 / / / 27 / / / 28 1 2 IV. CONCLUSION 3 For the foregoing reasons, this matter will be remanded under sentence four of 42 4 | U.S.C. § 405(g) for further development of the record and/or further findings. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for summary judgment (ECF No. 20) is granted in part 7 | and denied in part; 8 2. Defendant’s motion for remand (ECF No. 24) is granted in part and denied 9 | in part; 10 3. The Commissioner’s final decision is reversed and this matter is remanded 11 | for further proceedings consistent with this order; and 12 4. The Clerk of the Court is directed to enter judgment and close this file. 13 14 15 | Dated: August 7, 2019 Sx