Carrillo v. Colvin, Case No. SACV 12-1537 JC

• Decision Date: 25 February 2013
• Docket Number: Case No. SACV 12-1537 JC
• Court: U.S. District Court — Central District of California
• Parties: ROSA NUNEZ CARRILLO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ROSA NUNEZ CARRILLO, Plaintiff, v. CAROLYN W. COLVIN,¹ Acting Commissioner of Social Security, Defendant.

Case No. SACV 12-1537 JC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DATED: February 25, 2013

MEMORANDUM OPINION AND

ORDER OF REMAND

I. SUMMARY

On September 14, 2012, plaintiff Rosa Nunez Carrillo ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 19, 2012 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On June 30, 2009, plaintiff filed applications for Supplemental Security Income and Disability Insurance Benefits. (Administrative Record ("AR") 20, 204, 206). Plaintiff asserted that she became disabled on May 29, 2009,² due to hand, neck, back, knee, shoulder, arm and upper back pain, headaches, and depression. (AR 144-45, 231). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff (who was represented by counsel) on January 19, 2011, and heard testimony from plaintiff, a lay witness, and a vocational expert on May 18, 2011. (AR 94-176).

On June 9, 2011, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 20-30). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: status post compound fracture of right knee, tibia and fibula secondary to work injury in March 1995, status post right wrist surgery release of ulnar nerve in February 2003, right wrist tendinitis with tenosynovitis, chondromalacia of the patella, mild osteoarthritis of bilateral knees, mild rotator levoscoliosis of lumbar spine, and very mild degenerative narrowing of interphalangeal joints of the fingers (AR 22); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 24); (3) plaintiff retained the residual functional capacity essentially to perform light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) withmultiple additional limitations³ (AR 24-25); (4) plaintiff could perform her past relevant work as a "care provider" (AR 30); and (5) plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment (AR 25).

The Appeals Council denied plaintiff's application for review. (AR 1).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit the claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow the claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 1110 (same).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legalerror. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).

IV. DISCUSSION

Plaintiff essentially contends that the ALJ's determination at step four - that plaintiff's past relevant work included the job of "care provider" - was not supported by substantial evidence. (Plaintiff's Motion at 7-9). The Court agrees. As the Court cannot find that the ALJ's error was harmless, a remand is warranted.

A. Pertinent Law

At step four of the sequential evaluation process, the Administration may deny benefits when the claimant is able to perform her past relevant work as "actually performed" or as "generally" performed. Pinto v. Massanari, 249 F.3d 840, 845 (2001). Social Security regulations define past relevant work as "work that [a claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn it." 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1).

"Substantial gainful activity is work done for pay or profit that involves significant mental or physical activities." Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1571-404.1572 & 416.971-416.975). The primary factor used to determine whether a claimant was engaged in substantial gainful activity ("SGA") at a particular job is the amount of earnings a claimant derived from the job. Le v. Astrue, 540 F. Supp. 2d 1144, 1149 (C.D. Cal. 2008) (citing 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1)). "There is a rebuttable presumption that the employee either was or was not engaged in SGA if his or her average monthly earnings are above or below a certain amount established by the Commissioner's Earnings Guidelines." Id. (citing 20 C.F.R. §§ 404.1574(b)(2)-(3), 416.974(b)(2)-(3)); Lewis, 236 F.3d at 515 ("Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity."). For example, for 2008 an employee would be presumed to have engaged in work at an SGA level in a particular month if her average monthly earnings exceeded $940. See 20 C.F.R. §§ 404.1574(b)(2)(ii), 416.974(b)(2)(ii); Tables of SGA Earnings Guidelines and Effective Dates Based on Year of Work Activity, Social Security Administration Program Operation Manual System ("POMS") § DI 10501.015(B).⁴

A claimant may rebut the presumption that she was engaged in SGA at a prior job by presenting evidence that she was employed under "special conditions" which "[took] into account [her] impairment"- i.e., the claimant "required and received special assistance from other employees," the claimant was "allowed to work irregular hours or take frequent rest periods," and/or the claimant was permitted to work despite her impairments due to a family relationship. 20 C.F.R. §§ 404.1573(c); 416.973(c).

Although at step four the claimant has the burden of proving an inability to perform her past relevant work, "the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto, 249 F.3d at 844.

B. Analysis

Here, the Court cannot conclude on the current record that the ALJ's findings at step four of the sequential evaluation process are supported by substantial evidence.

As defendant correctly notes, plaintiff's certified earnings records raise a presumption that in 2008 plaintiff engaged in work at an SGA level. Plaintiff testified at the hearing that she worked as a care provider for her mother for about three years ending...