Facey v. Comm'r of Soc. Sec., 2:19-CV-1596-DMC

• Decision Date: 30 March 2021
• Docket Number: No. 2:19-CV-1596-DMC,2:19-CV-1596-DMC
• Parties: MALLORY B. FACEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of California

MALLORY B. FACEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:19-CV-1596-DMC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 30, 2021

MEMORANDUM OPINION AND ORDER

Plaintiff, proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, see ECF Nos. 7 and 8, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the Court are the parties' briefs on the merits, see ECF Nos. 12 and 13.

For the reasons discussed below, the Commissioner's final decision is reversed, and the matter will be remanded for further proceedings consistent with this opinion.

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/ / / The Court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

I. THE DISABILITY EVALUATION PROCESS

To achieve uniformity of decisions, the Commissioner employs a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed not disabled and the claim is denied;

Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe impairment; if not, the claimant is presumed not disabled and the claim is denied;

Step 3 If the claimant has one or more severe impairments, determination whether any such severe impairment meets or medically equals an impairment listed in the regulations;if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted;

Step 4 If the claimant's impairment is not listed in the regulations, determination whether the impairment prevents the claimant from performing past work in light of the claimant's residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied;

Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant's residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

To qualify for benefits, the claimant must establish the inability to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment of such severity the claimant is unable to engage in previous work and cannot, considering the claimant's age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The claimant establishes a prima facie case by showing that a physical or mental impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER'S FINDINGS

Plaintiff applied for social security benefits on August 19, 2015. See CAR 10.¹ Plaintiff claims disability began on August 19, 2015. See id. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 24, 2018, before Administrative Law Judge (ALJ) Jean R. Kerins. In an August 3, 2018, decision, the ALJ concluded plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): cyclical vomiting syndrome; cannabinoid hyperemesis syndrome; and seizure disorder;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: light work; the claimant is limited to stand and walking four out of eight hours, and sitting six our of eight hours; she can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds; she is limited to frequent balancing, occasional stooping, frequent kneeling and crouching, and occasional crawling; she must avoid even moderate exposure to hazards such as machinery and heights;

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

Seeid. at 12-25.

After the Appeals Council declined review on June 25, 2019, this appeal followed.

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III. DISCUSSION

In her opening brief, Plaintiff argues: (1) the ALJ failed to consider whether Plaintiff's seizure disorder meets or medically equals Listing 11.02B; (2) the ALJ improperly relied on the outdated opinion of a non-examining agency doctor; (3) the ALJ erred in determining Plaintiff's statements and testimony were not credible; and (4) the ALJ failed to properly consider lay witness evidence from Plaintiff's husband and daughter.

A. Listing of Impairments

As to the ALJ's findings at Step 3, Plaintiff argues: (1) the ALJ failed to make specific findings regarding Listing 11.02B; and (2) the ALJ failed to properly evaluate difficulties Plaintiff had due to cyclical vomiting syndrome. Although the Court concludes that it would not normally be error for the ALJ to neglect to explicitly list why Plaintiff did not satisfy the criteria under Listing 11.02B, the Court determines that the ALJ did here err in failing to develop the record regarding Plaintiff's cyclical vomiting syndrome.

1. Evaluating the Listings

The Social Security Regulations "Listing of Impairments" is comprised of impairments to fifteen categories of body systems that are severe enough to preclude a person from performing gainful activity. 20 C.F.R. § 404.1520(d); Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). Conditions described in the listings are considered so severe that they are irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d); see Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995). In meeting or equaling a listing, each requirement of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985).

The claimant bears the burden of producing medical evidence that establishes all of the requisite medical findings that his or her impairments meet or equal a particular listing. Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987). If the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or otherwise, as to how his or her combined impairments equal a listing. Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001).

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2. Listing 11.02B

At Step 3, the ALJ determined that Plaintiff's impairments do not, singly or in combination, meet or medically equal any impairment outlined in the Listings, specifically Listings 5.00 and 11.00. See CAR 16. The ALJ specifically stated:

The severity of the claimant's physical impairments, considered singly and in combination, does not meet or medically equal the criteria of any impairment listed in sections 5.00 and 11.00, as demonstrated by the objective findings discussed below. No treating or examining physician recorded findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that are the same or equivalent to those of any listed impairment.

Id.

Plaintiff contends the ALJ failed to analyze her case under Listing 11.02B, which relates to epilepsy. Listing 11.02B...