(SS) Suske v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JENNIE R. SUSKE, No. 2:19-CV-0959-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, see ECF Nos. 9 and 13, 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. See ECF Nos. 19 23 and 20. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the matter will be remanded for further 15 proceedings. 16 17 I. THE DISABILITY EVALUATION PROCESS 18 To achieve uniformity of decisions, the Commissioner employs a five-step 19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 20 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 21 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 22 not disabled and the claim is denied; 23 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 24 impairment; if not, the claimant is presumed not disabled and the claim is denied; 25 Step 3 If the claimant has one or more severe impairments, 26 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 27 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 28 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on May 27, 2015. See CAR 16.1 In 3 the application, plaintiff claims disability began on October 16, 2014. See id. Plaintiff’s claim 4 was initially denied. Following denial of reconsideration, plaintiff requested an administrative 5 hearing, which was held on February 7, 2018, before Administrative Law Judge (ALJ) Plauche F. 6 Villere, Jr. In a July 17, 2018, decision, the ALJ concluded plaintiff was disabled as of 7 November 1, 2017, but not at any time prior to that date. Specifically, the ALJ made the 8 following relevant findings: 9 1. The claimant has the following severe impairment(s): psoriatic arthritis, carpal tunnel syndrome, depression, anxiety, and attention 10 deficit disorder; 11 2. Prior to November 1, 2017, the claimant did not have an impairment or combination of impairments that meets or medically 12 equals an impairment listed in the regulations; 13 3. Prior to November 1, 2017, the claimant had the following residual functional capacity: the claimant could perform light work; she 14 could frequently climb ramps or stairs, stoop, kneel, crouch, or crawl; she could occasionally climb ladders, ropes, or scaffolds, 15 she was unlimited in balancing; she could frequently handle bilaterally; she could carry out simple 2-3 step instructions 16 consistently; she could deal with the public and get along with people at work if the contact was brief; 17 4. Considering the claimant’s age, education, work experience, 18 residual functional capacity, and the Medical-Vocational Guidelines, there are jobs that exist in significant numbers in the 19 national economy that the claimant can perform. 20 See id. at 19-30. 21 The ALJ concluded that, beginning November 1, 2017, plaintiff was disabled pursuant to the 22 Listings of Impairments, Listings 11.14B.4 and 14.09B.2. See id. at 30-31. 23 After the Appeals Council declined review on March 21, 2019, this appeal 24 followed. 25 / / / 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on 28 November 19, 2019. See ECF No. 12. 1 III. DISCUSSION 2 In her motion for summary judgment, plaintiff argues, among other things, the 3 ALJ’s selection of November 1, 2017, as the onset date was arbitrary.2 The Court finds this 4 argument to be dispositive in plaintiff’s favor. 5 Throughout the hearing decision, the ALJ references November 1, 2017, as the 6 date on which he finds disability began. Specifically, the ALJ concluded that, as of November 1, 7 2017, plaintiff’s impairments were sufficiently severe to meet the requirements of the Listing of 8 Impairments, mandating a finding of “disabled” under the regulations. See CAR 30-31. The ALJ 9 also found plaintiff was not disabled prior to this date. See id. at 31. Plaintiff contends the 10 selection of this date was arbitrary. 11 In response, defendant contends: “The ALJ properly found that Plaintiff’s 12 migraine headaches and degenerative disc disease were non-severe impairments prior to 13 November 1, 2017.” ECF No. 20, pg. 13. This, however, is not an accurate reading of the 14 hearing decision. As to migraine headaches, defendant’s argument suggests that the impairment 15 was considered severe as of November 1, 2017. The ALJ, however, never found migraines to be 16 a severe impairment, before or after November 1, 2017. As to degenerative disc disease, the ALJ 17 never identified this as an impairment, severe or otherwise, at any time. 18 The Court has scoured the hearing decision for references to various onset dates 19 and a supported rationale for selecting November 1, 2017, as the precise onset date indicated by 20 the record, to no avail. The only discussion of the November 1, 2017, onset date is as follows: 21 As for the opinion evidence, on April 5, 2018, Irvin S. Belzer, M.D., a State agency medical expert, responded to medical interrogatories sent 22 after the hearing, and opined that the claimant equaled listing 11.14B.4 and 14.09B.2, effective November 2017 (Exhibit 15F). The undersigned 23 gives great weight to this opinion, and has adopted it within the decision of this case. . . . 24 CAR 31. 25 2 Plaintiff also argues the ALJ erred at Step 2 in determining that plaintiff’s 26 migraine headaches and degenerative disc disease are non-severe impairments; the ALJ erred at Step 3 in failing to consider the impact of plaintiff’s degenerative disc disease, insomnia, fatigue, 27 and obesity; the ALJ erred at Step 4 with respect to weighing the medical opinions; at Step 4, the ALJ failed to provide sufficient reasons to rejects plaintiff’s statements and testimony as not 28 credible; and the ALJ erred at Step 5 in applying the Medical-Vocational Guidelines. 2 LDV IVINS OUI DPI ere PAY VI 1 Though the ALJ cites Dr. Belzer’s conclusion, neither the ALJ nor Dr. Belzer 2 | references any evidence in support of the conclusion. At Step 3, the ALJ concluded that 3 | plaintiff's impairments did not meet or medically equal the Listings of Impairments prior to 4 | November 1, 2017. See CAR 20-22. The discussion accompanying this conclusion, however, is 5 || completely devoid of any mention of evidence referencing November 1, 2017. At Step 4, the 6 | ALJ concluded plaintiff had the residual functional capacity for light work prior to November 1, 7 | 2017. See id. at 22-28. While the ALJ discusses the evidence prior to November 2017, the ALJ 8 | does not explain what changed to render plaintiff disabled as of November 1, 2017, or make any 9 | mention of that specific date. 10 Given this lack of evidentiary support, the Court agrees with plaintiff that the 11 | November 1, 2017, onset date was arbitrarily selected. Due to this error, the Court cannot say 12 | that the remainder of the ALJ’s analysis is free from defect. The Court finds that the matter must 13 | be remanded to allow the Commissioner to establish the onset date with certainty and based upon 14 | objective evidence. 15 16 IV. CONCLUSION 17 For the foregoing reasons, this matter will be remanded under sentence four of 42 18 | U.S.C. § 405(g) for further development of the record and/or further findings addressing the 19 || deficiencies noted above. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff's motion for summary judgment, ECF No. 19, is granted; 22 2. Defendant’s motion for summary judgment, ECF No. 20, is denied; 23 3. The Commissioner’s final decision is reversed and this matter is remanded 24 | for further proceedings consistent with this order; and 25 4. The Clerk of the Court is directed to enter judgment and close this file. 26 | Dated: September 25, 2020 Ssx _- 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE