Louis W. v. Kijakazi

• Decision Date: 11 July 2022
• Docket Number: 20cv2277-LL(MSB)
• Parties: MICHAEL LOUIS W.,[1]Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of California

MICHAEL LOUIS W.,^[1]Plaintiff,
v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 20cv2277-LL(MSB)

United States District Court, S.D. California

July 11, 2022

REPORT AND RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY [ECF NO. 20]

Honorable Michael S. Berg United States Magistrate Judge

This Report and Recommendation is submitted to the Honorable Linda Lopez, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. On November 23, 2020, Plaintiff filed a Complaint, (Compl., ECF No. 1), and on November 27, 2020, an Amended Complaint, the operative pleading in this case, pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner

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of Social Security denying his application for a period of disability, disability insurance benefits, and supplemental security income, (Am. Compl., ECF No. 7).

Now pending before the Court is the parties' “Joint Motion for Judicial Review of the Final Decision of the Commissioner of Social Security” (“Joint Motion”). (J. Mot., ECF No. 20 (“J. Mot.”).) For the reasons set forth below, the Court RECOMMENDS that the Commissioner's decision be REVERSED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL BACKGROUND

On April 27, 2017, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability beginning November 1, 2013. (Certified Admin. R., 15, ECF No. 14-2 (“AR”).) Plaintiff also filed an application for supplemental security income under Title XVI on April 27, 2017. (Id.) After his application was denied initially and upon reconsideration, (id. at 130-35, 138-43), Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”), (id. at 144-46). An administrative hearing was held on September 23, 2019. (Id. at 40-55.) Plaintiff appeared at the hearing with counsel, and testimony was taken from him and a vocational expert (“VE”). (Id.)

As reflected in his October 8, 2019, hearing decision, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security Act, from November 1, 2013, through the date of the decision. (Id. at 25.) The ALJ's decision became the final decision of the Commissioner on September 18, 2020, when the Appeals Council denied Plaintiff's request for review. (Id. at 1-6.) This timely civil action followed.

II. SUMMARY OF THE ALJ'S FINDINGS

In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 1, 2013, the alleged onset date. (AR at 17.) At step two, the ALJ found that Plaintiff had the

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following severe impairments: degenerative disc disease of the lumbar and thoracic spine, degenerative changes of the cervical spine with residuals of surgery, and mild osteoarthritis of the bilateral shoulders. (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (Id. at 19.)

Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to do the following:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to lift and carry 20 pounds occasionally, ten pounds frequently; can stand and/or walk for six hours out of eight hours, sit for six hours occasionally climb stairs and ramps, never climb ropes ladders, scaffolds; occasionally stoop, kneel, crouch, and crawl; occasionally reach overhead bilaterally; and avoid concentrated exposure to extreme cold, unprotected heights, and moving and dangerous machinery.

(Id. at 19-20.)

At step four, the ALJ adduced and accepted the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC would be unable to perform any of his past relevant work. (Id. at 23, 51-52.) The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC could perform the requirements of occupations that existed in significant numbers in the national economy, such as cleaner, assembler, and material distributor, the ALJ found that Plaintiff was not disabled. (Id. at 24-25, 52.)

III. DISPUTED ISSUES

As reflected in the parties' Joint Motion, Plaintiff is raising the following issues as the grounds for reversal and remand:

1. Whether the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff's allegations of pain and physical dysfunction;

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2. Whether the ALJ properly evaluated whether Plaintiff's cervical impairment met or medically equaled Listing 1.04(A);

3. Whether the ALJ fully and fairly developed the record; and

4. Whether the ALJ resolved an apparent inconsistency between the VE's testimony and the Dictionary of Occupational Titles (“DOT”). (J. Mot. at 2-3.)

IV. STANDARD OF REVIEW

Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will not be disturbed if it is supported by substantial evidence in the record and contains no legal error. Id.; Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citation omitted)).

“Substantial evidence means more than a mere scintilla but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

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V. DISCUSSION

A. The ALJ Did Not Provide Specific, Clear, and Convincing Reasons for Discounting Plaintiff's Allegations of Pain and Physical Dysfunction

Plaintiff argues that the ALJ failed to provide specific, clear, and convincing reasons for discounting his allegations of pain and physical dysfunction. (J. Mot. at 3-8, 13-14.) Plaintiff asserts that the ALJ recognized that Plaintiff had severe spinal impairments, and the ALJ was required to provide specific, clear, and convincing reasons for discrediting Plaintiff's alleged symptoms. (Id. at 3-4.) Plaintiff maintains that the ALJ's general findings are insufficient, and the ALJ failed to identify what testimony is not credible and what medical evidence undermines Plaintiff's alleged symptoms. (Id. at 4, 13-14.) Plaintiff contends that the ALJ's failure to identify legally sufficient rationale for discounting his allegations of neck and back pain constituted legal error warranting remand. (Id. at 7-8.)

The Commissioner asserts that the ALJ reasonably weighed Plaintiff's allegations of pain and physical dysfunction against the objective medical evidence in the record. (Id. at 9-13.) The Commissioner alleges that substantial evidence supports the ALJ's assessment that Plaintiff could perform a range of light work, and the ALJ identified contradictions between Plaintiff's testimony and the medical record, and found that Plaintiff's back pain improved with physical therapy and conservative treatment. (Id. at 9-12). Further, the Commissioner asserts that the ALJ pointed to multiple examinations and specific exhibits in the record to support his decision. (Id. at 11-12.) Therefore, the Commissioner maintains that the ALJ did not arbitrarily discredit Plaintiff's testimony, and the ALJ's decision is free of harmful error. (Id. at 12-13.)

1. Applicable law

When evaluating claimant's allegations regarding subjective symptoms such as pain, the ALJ must engage in a two-step analysis. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996), superseded, in part, on other grounds by 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3);

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see also Social Security Ruling (“SSR”) 16-3p,^[2] 2016 WL 1119029 (Mar. 16, 2016). First, the ALJ must determine whether there is objective medical evidence of an underlying impairment that “could reasonably be expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). The claimant is not required to show that an underlying impairment could reasonably be expected to cause the severity of the pain alleged, but only that it could have reasonably caused some degree of the pain. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

Second, if the first step has been satisfied and there is no evidence of malingering, then the ALJ may...