Gutierrez v. Saul

• Decision Date: 12 February 2020
• Docket Number: Case No. 2:17-cv-02365-MMD-EJY
• Parties: MARK F. GUTIERREZ, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Nevada

MARK F. GUTIERREZ, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security,¹ Defendant.

Case No. 2:17-cv-02365-MMD-EJY

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 12, 2020

REPORT AND RECOMMENDATION

Re: Motion for Reversal and Remand

(ECF No. 12)

Plaintiff Mark F. Gutierrez ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or the "Agency") denying his application for disability insurance ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act. For the reasons stated below, it is recommended that the Commissioner's decision be remanded to the Social Security Administration under the Compassionate Allowances program for further proceedings consistent with this Report and Recommendation.

I. BACKGROUND

On April 2, 2014, Plaintiff filed applications for DIB and SSI alleging disability beginning November 27, 2012. Administrative Record ("AR") 13. The Commissioner denied Plaintiff's claims by initial determination on August 29, 2014, and again upon reconsideration on December 16, 2014. AR 124-27, 130-36. On December 22, 2014, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 137-38. After conducting a hearing on May 5, 2016 (AR 31-59), ALJ Norman L. Bennett issued his determination that Plaintiff was not disabled on June 3,2016 (AR 13-24). On June 20, 2016, Plaintiff requested that the Appeals Council review the decision by the ALJ. AR 180. The Appeals Council denied Plaintiff's request for review on July 5, 2017. AR 1-6. This civil action followed.

II. STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner's alleged errors, courts must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

"When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A reviewing court, however, "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, a court may not reverse an ALJ's decision based on an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

III. DISCUSSION

A. Establishing Disability Under The Act

To establish whether a claimant is disabled under the Act, there must be substantial evidence that:

(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and(b) the impairment renders the claimant incapable of performing the work that the 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). "If a claimant meets both requirements, he or she is disabled." Id.

The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a).² Each step is potentially dispositive and "if a claimant is found to be 'disabled' or 'not-disabled' at any step in the sequence, there is no need to consider subsequent steps." Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

The five steps are:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).

Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).

Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).

Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).

Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economythat claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert [("VE")], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits. See id.

Id. at 1098-99 (internal alterations omitted).

B. Summary of ALJ's Findings

At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity since November 27, 2012, the alleged onset date of disability.³ AR 15. At step two, the ALJ found that Plaintiff suffered from medically determinable severe impairments consisting of "mild degenerative disc disease in the lumbar spine; obesity; and bipolar disorder." Id. At step three, the ALJ found that Plaintiff's impairment did not meet or equal any "listed" impairment in 20 C.F.R., Part 404, Subpart ("Subpt.") P, Appendix ("App.") 1. AR 16.

In preparation for step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC")⁴ to:

[P]erform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. The claimant can stand/walk 6 hours in an 8 hour workday. The claimant can sit 6 hours in an 8 hour day. The claimant can engage in occasional postural activities. The claimant is limited to simple, repetitive tasks and occasional contact with supervisors, coworkers and the general public.

AR 17.

At step four, upon review of the claimant's earning record and work history report, the ALJ found that "the following occupations meet the earnings, and duration requirement of 'past relevant work' . . . : [r]ide attendant, DOT⁵ 342.677-010, . . . [c]ashier, DOT 211.462-010, . . . [s]toremanager, DOT 185.167-046, . . . [and, c]omposite job consisting of: a) Stock supervisor, DOT 921.133-018, . . . and b) Stock clerk, DOT 299.367-014 . . . ." AR 22. The ALJ determined "the claimant is unable to return to his past relevant work" because "the demands of the claimant's past relevant work exceed that of his current residual functional capacity." AR 23.

In preparation for step five, the ALJ noted that Plaintiff was "born on December 10, 1986 and was 25 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963)." Id. The ALJ noted that Plaintiff had a limited education, but "is able to communicate in English." Id. The ALJ then added that "[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is 'not disabled,' whether or not the claimant has transferable job skills. (See SSR [Social Security Ruling] 82-41 and 20 CFR Part 404, Subpart P, Appendix 2)." Id.

At step five, the ALJ found that "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a))." Id. Specifically, the ALJ found Plaintiff could perform the "light,...