Stevens v. Comm'r of Soc. Sec., 2:17-CV-2496-DMC

• Decision Date: 28 March 2019
• Docket Number: No. 2:17-CV-2496-DMC,2:17-CV-2496-DMC
• Parties: JAMES M. STEVENS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of California

JAMES M. STEVENS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:17-CV-2496-DMC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 28, 2019

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. 8 and 9), 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' brief on the merits (Docs. 12 and 22).

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).

For the reasons discussed below, the matter will be remanded for further proceedings.

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;

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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 September 8, 2014. See CAR 15.¹ In the application, plaintiff claims disability began on September 1, 2012. See id. In his opening brief, plaintiff offers the following statement of the case:

Joseph Stevens was born April 25, 1962. He completed the 10th grade (AR 180) and worked continuously working unskilled physical labor jobs; construction, property maintenance, laying sod lawns, and delivering car parts (AR 36). In 2012 he married Karen Stevens and the couple moved to California at the end of 2012. Early in 2013 Stevens began to have difficulty breathing. He was evaluated at the end of 2012. Stevens was admitted into Emergency September 2013(AR 184). Kaiser tested Stevens and the x-rays found Stevens with chronic obstructive pulmonary disease, an obstruction in his lower lung (AR 362).

In 2013 Kaiser's Pulmonary team prepared to operate on Stevens to remove the obstruction in his lower lung (AR 394). The operation in 2014 was unsuccessful (AR 775) (AR 804). Stevens had an adverse reaction to the medications needed to treat him. He gained significant weight. He became severely depressed. Stevens applied for social security disability in September of 2014 (AR 156). His date of last insured was December 2014.

Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 3, 2017, before Administrative Law Judge (ALJ) Daniel Myers. In a March 27, 2017, decision, the ALJ concluded plaintiff is not disabled through the date last insured (DLI)² based on the following relevant findings:

1. Through the date last insured, the claimant had the following severe impairment(s): mild COPD, sarcoidosis status post partial lobectomy of the left lung, cervical spine disorder, and joint dysfunction;

2. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled an impairment listed in the regulations;

3. Through the date last insured, the claimant had the following residual functional capacity: light work; the clamant could occasionally stoop, kneel, crouch, crawl, and climb stairs; he needed to avoid hazards such as unprotected heights and moving machinery; he needed to avoid fumes, and pulmonary irritants;4. Considering the claimant's age, education, work experience, residual functional capacity through the date last insured, and vocational expert testimony, there were jobs that existed in significant numbers in the national economy that the claimant could have performed.

Seeid. at 17-26.

After the Appeals Council declined review on October 20, 2017, this appeal followed.

III. DISCUSSION

In his opening brief, plaintiff argues: (1) the ALJ failed to comply with Social Security Ruling 83-20 and obtain medical opinion evidence to determine the precise onset date; (2) the ALJ failed to give adequate weight to the medical opinions of treating physician, Dr. Shah, and examining physician, Dr. Fernando; (3) the ALJ failed to provide adequate reasons for rejecting plaintiff's statements and testimony as not credible; (4) the ALJ erred by failing to address lay witness evidence provided by plaintiff's wife, Karen Stevens; (5) the ALJ failed to consider plaintiff's mental impairments or obesity; and (6) the ALJ's vocational finding is flawed because plaintiff is unable to perform any of the jobs identified by the vocational expert.

A. Determination of Onset Date

Citing Diedrich v. Berryhill, 874 F.3d 634 (9th Cir. 2017), plaintiff argues the ALJ violated Social Security Ruling (SSR) 83-20, which requires the ALJ to appoint a medical advisor to establish a claimant's disability onset date when there is a meaningful gap in the medical records, or when the record, though complete, is ambiguous as to the onset date.³ According to plaintiff, both conditions are met in this case. Plaintiff argues:

Here the ALJ states Stevens did not have a mental impairment during the date of last insured.(AR 17). The ALJ states "Dr. Brode determined there was insufficient evidence to make a determination as to the date of last insured. (AR 18). Consultive [sic] Examiner Dr. Lacy states Stevens had been depressed for the previous four years throughout the period insured (DLI) (AR 816). The ALJ discounts examining consultant Dr. Lacy's evaluation (AR 18). As such the ALJ finds there was insufficient medical evidence to establish a medically determinablemental impairment through the date of last insured. Therefore there is a meaningful gap in the record which requires a medical expert. Thus (A) is met.

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