Rhoades v. Comm'r of Soc. Sec.

• Decision Date: 26 September 2018
• Docket Number: No. 2:16-CV-2544-DMC,2:16-CV-2544-DMC
• Parties: LANCE RICHARD RHOADES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of California

LANCE RICHARD RHOADES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:16-CV-2544-DMC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 26, 2018

MEMORANDUM OPINION AND ORDER

Plaintiff, who is 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 (Docs. 7 and 11), 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' cross-motions for summary judgment (Docs. 16 and 19).

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 clam 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.

Seeid.

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).

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /

II. THE COMMISSIONER'S FINDINGS

Plaintiff applied for social security benefits on January 26, 2011, and May 16, 2011. See CAR 18.¹ Plaintiff claims disability began on June 9, 2008, following shoulder injuries sustained in a work-related accident. See id. at 658-659 (hearing testimony).² Plaintiff's claims were initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on February 28, 2013, before Administrative Law Judge (ALJ) Mark C. Ramsey. In an April 15, 2013, decision, the ALJ concluded plaintiff is not disabled. See id. at 18-28. Plaintiff sought review by this court. See Rhoades v. Commissioner of Social Security, E. Dist. Cal. Case No. 2:14-CV-1229-CMK. In an October 22, 2015, memorandum opinion and order, the court remanded for further proceedings. See id.

On remand, the matter was assigned to the same ALJ, who stated as follows:

. . .The District Court ordered further consideration to the opinions of Drs. Watkin, Acinas, and Kalen. It also directed further consideration of the claimant's maximum residual functional capacity and application of the Medical Vocational Rules giving consideration to the use of a vocational expert to determine the effect of all nonexertional limitations (Exhibit 12A/8-19).

CAR 623.

A second hearing was held on April 7, 2016. See id. In a June 2, 2016, decision, the ALJ found plaintiff not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): bilateral shoulder injuries status post three surgeries right shoulder;³ carpal tunnel syndrome post right release surgery; obesity;

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: medium work;

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.

See CAR 626-46.

After the Appeals Council declined review on September 1, 2016, this appeal followed.

III. DISCUSSION

In his motion for summary judgment, plaintiff argues: (1) the ALJ erred in concluding his depression was not a severe impairment; (2) the ALJ failed to properly evaluate the medical opinions in evaluating his physical residual functional capacity; (3) the ALJ failed to set forth clear and convincing reasons for rejecting his statements and testimony as not credible; (4) the ALJ erred by discrediting lay witness evidence; (5) the vocational expert's testimony did not constitute substantial evidence to support the ALJ's vocational finding; and (6) the matter should be remanded for consideration of new evidence.

A. Severity Finding

At Step 2, the ALJ evaluated the severity of plaintiff's impairments and found plaintiff's depression non-severe. See id. at 626-32. To qualify for benefits, the plaintiff must have an impairment severe enough to significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).⁴ In determining whether a claimant's alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must consider the combined effect of all impairments on the ability to function, without regard to whether each impairment alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of impairments, can only be found to be non-severe ifthe evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. See Social Security Ruling (SSR) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id.

In concluding plaintiff's depression is not a severe impairment, the ALJ stated:

The claimant also alleges depression. The undersigned finds his medically determinable mental impairment of depression or dysthymic disorder does not cause more than minimal limitations in the claimant's ability to perform basic mental work activities and is therefore non-severe. The record overall shows any symptoms of depressions are related to situations, such as job loss, changes in weather, financial stress, or some excessive alcohol use. It demonstrates that treatment with

...