Clark Allen Fox v. Carolyn W. Colvin

Filing 26

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 5:16-CV-01328 (VEB)
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CLARK ALLEN FOX,
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DECISION AND ORDER

Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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I. INTRODUCTION

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In January of 2013, Plaintiff Clark Allen Fox applied for Disability Insurance

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benefits and Supplemental Security Income benefits under the Social Security Act.
The Commissioner of Social Security denied the applications.1 Plaintiff, represented

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 On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The

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Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant
in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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by the Law Offices of Bill LaTour, Esq., Shaza Quadi, Esq., of counsel, commenced

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this action seeking judicial review of the Commissioner’s denial of benefits pursuant

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to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

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The parties consented to the jurisdiction of a United States Magistrate Judge.

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(Docket No. 10,12, 25). On June 6, 2017, this case was referred to the undersigned

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pursuant to General Order 05-07. (Docket No. 24).

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II. BACKGROUND

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Plaintiff applied for benefits on January 22, 2013, alleging disability

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beginning December 31, 2009, due to various physical impairments. (T at 14).2 The

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applications were denied initially and on reconsideration.

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hearing before an Administrative Law Judge (“ALJ”). On January 14, 2015, a

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hearing was held before ALJ Nancy Stewart. (T at 24). Plaintiff appeared with his

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attorney and testified. (T at 28-47). The ALJ also received testimony from Scott

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Troy, a vocational expert (T at 48-53).

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Plaintiff requested a

On January 27, 2012, the ALJ issued a written decision denying the
applications for benefits.

(T at 9-23).

The ALJ’s decision became the

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 Citations to (“T”) refer to the administrative record at Docket No. 16.
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Commissioner’s final decision on June 7, 2016, when the Appeals Council denied

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Plaintiff’s request for review. (T at 1-4).

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On June 22, 2016, Plaintiff, acting by and through his counsel, filed this

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action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The

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Commissioner interposed an Answer on November 16, 2016. (Docket No. 15).

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Plaintiff filed a supporting memorandum of law on December 23, 2016. (Docket No.

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18). The Commissioner filed an opposing memorandum on February 17, 2017.

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(Docket No. 23).

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After reviewing the pleadings, memoranda of law, and administrative record,

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this Court finds that the Commissioner’s decision should be affirmed and this case

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must be dismissed.

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III. DISCUSSION
A.

Sequential Evaluation Process

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The Social Security Act (“the Act”) defines disability as the “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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claimant shall be determined to be under a disability only if any impairments are of

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such severity that he or she is not only unable to do previous work but cannot,

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considering his or her age, education and work experiences, engage in any other

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substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether the claimant has a

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medically severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If the claimant does not have a severe impairment or combination of

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impairments, the disability claim is denied. If the impairment is severe, the

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evaluation proceeds to the third step, which compares the claimant’s impairment(s)

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with a number of listed impairments acknowledged by the Commissioner to be so

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severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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equals one of the listed impairments, the claimant is conclusively presumed to be

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disabled. If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step, which determines whether the impairment

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prevents the claimant from performing work which was performed in the past. If the

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claimant is able to perform previous work, he or she is deemed not disabled. 20

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C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual

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functional capacity (RFC) is considered. If the claimant cannot perform past relevant

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work, the fifth and final step in the process determines whether he or she is able to

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perform other work in the national economy in view of his or her residual functional

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capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),

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416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden

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is met once the claimant establishes that a mental or physical impairment prevents

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the performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” that the

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claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

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“The [Commissioner’s] determination that a plaintiff is not disabled will be

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upheld if the findings of fact are supported by substantial evidence.” Delgado v.

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Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial

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evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119

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n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d

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599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and

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conclusions as the [Commissioner] may reasonably draw from the evidence” will

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also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review,

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the Court considers the record as a whole, not just the evidence supporting the

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decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

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1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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of either disability or non-disability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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The ALJ determined that Plaintiff had not engaged in substantial gainful

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activity since December 31, 2009 (the alleged onset date) and met the insured status

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requirements of the Social Security Act through December 31, 2014 (the date last

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insured). (T at 14). The ALJ found that Plaintiff’s spinal disorder, degenerative disc

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disease with compression fracture of L1, Lyme’s disease, hypertension, chronic

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obstructive pulmonary disorder with continued tobacco dependence, inflammatory

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arthritis, and multiple fractures secondary to a motor vehicle accident were “severe”

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impairments under the Act. (T at 14).

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However, the ALJ concluded that Plaintiff did not have an impairment or

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combination of impairments that met or medically equaled one of the impairments

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set forth in the Listings. (T at 14).

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The ALJ determined that Plaintiff retained the residual functional capacity

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(“RFC”) to perform sedentary work as defined in 20 CFR § 416.967 (a), with the

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following limitations: he can lift/carry 10 pounds frequently and push/pull within

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this limitation; he cannot utilize foot pedals with his left lower extremity and can

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only occasionally push/pull with the left upper extremity; he can stand/walk for 2

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hours in an 8-hour period, with no prolonged walking greater than 15 minutes at a

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time; he can sit for 6 hours in an 8-hour workday (provided he can stand and stretch

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not more than 10% of the day); he cannot work with ladders, ropes, or scaffolds; he

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cannot kneel or crawl; he must avoid exposure to respiratory irritants and workplace

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hazards; he cannot perform jobs that required reading or writing as a primary part of

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the job; and he is limited to non-complex, routine tasks, with no fast-paced work. (T

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at 15).

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The ALJ found that Plaintiff could not perform his past relevant work as a

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painter. (T at 18). However, considering Plaintiff’s age (41 on the alleged onset

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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date), education (at least high school), work experience, and residual functional

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capacity, the ALJ determined that there were jobs that exist in significant numbers in

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the national economy that Plaintiff can perform. (T at 18).

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As such, the ALJ found that Plaintiff was not entitled to benefits under the

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Social Security Act from December 31, 2009 (the alleged onset date) through

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February 9, 2015 (the date of the ALJ’s decision). (T at 19). As noted above, the

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ALJ’s decision became the Commissioner’s final decision when the Appeals

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Council denied Plaintiff’s request for review. (T at 1-4).

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D.

Disputed Issues
Plaintiff offers three (3) main arguments in support of his claim that the

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Commissioner’s decision should be reversed.

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Listings analysis was flawed.

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properly analyze the medical opinion evidence.

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ALJ’s step five analysis. This Court will address each argument in turn.

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First, he argues that the ALJ’s

Second, Plaintiff contends that the ALJ did not
Third, Plaintiff challenges the

IV. ANALYSIS
A.

Listings Analysis

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At step three of the sequential evaluation, the ALJ must determine whether the

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claimant has an impairment or combination of impairments that meets or equals an

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impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R.

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§§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, he or

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she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City

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of New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); see also

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Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also 20 C.F.R. §§

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404.1525(a); 416.925(a).

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An impairment meets a Listing if the impairment matches all of the medical

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criteria specified in the Listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct.

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885, 107 L. Ed. 2d 967 (1990); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

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1999). An impairment or combination of impairments that satisfies some, but not all

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of the criteria, does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099.

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The claimant bears the burden of proving that she has an impairment or

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combination of impairments that meets or equals the criteria of a listed impairment.

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To satisfy this burden, the claimant must offer medical findings equal in severity to

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all requirements, which findings must be supported by medically acceptable clinical

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and laboratory diagnostic techniques. 20 C.F.R. § 416.926(b).

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If a claimant’s impairment does not satisfy the Listings criteria, he or she may

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still be disabled if the impairment “equals” a listed impairment. 20 C.F.R. §

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404.1520(d). Equivalence will be found if the medical findings are (at a minimum)

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equal in severity and duration to the Listed impairment. Marcia v. Sullivan, 900 F.2d

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172, 175 (9th Cir. 1990). To determine medical equivalence, the Commissioner

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compares the findings concerning the alleged impairment with the medical criteria of

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the listed impairment. 20 C.F.R. §§ 416.924(e), 416.926.

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If a claimant has multiple impairments, the ALJ must determine “whether the

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combination of [the] impairments is medically equal to any listed impairment.” 20

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C.F.R. § 404.1526(a). The claimant’s symptoms “must be considered in combination

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and must not be fragmentized in evaluating their effects.” Lester v. Chater, 81 F.3d

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821, 829 (9th Cir. 1996). “A finding of equivalence must be based on medical

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evidence only.” See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)(citing 20

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C.F.R. § 1529(d)(3)).

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“[I]n determining whether a claimant equals a listing under step three . . . the

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ALJ must explain adequately his evaluation of alternative tests and the combined

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effects of the impairments.” Marcia, 900 F.2d at 176 (9th Cir. 1990). A remand may

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be required if ALJ fails adequately to consider a Listing that plausibly applies to the

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claimant’s case. See Lewis, 236 F.3d at 514.

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In the present case, the ALJ concluded that Plaintiff did not have an

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impairment or combination of impairments that met or medically equaled one of the

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impairments set forth in the Listings. (T at 14).

The ALJ stated that she had

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considered, in particular, Listings §1.04 (Disorders of the Spine) and §14.09

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(Inflammatory Arthritis). (T at 15).

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Plaintiff argues that the ALJ failed to properly consider Listing § 1.04. That

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impairment requires the presence of a spinal disorder “resulting in compromise of a

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nerve root (including the cauda equina) or the spinal cord,” along with other factors

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outlined in subsections A, B, and C in §1.04.

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However, while Plaintiff cites evidence that his impairment has some of the

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aspects identified in the various subsections of §1.04, he cites no evidence of

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compromise of a nerve root (including the cauda equina) or the spinal cord. Indeed,

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the medical imaging is to the contrary. (T at 322, 339, 347).

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As further support for the ALJ’s determination, the State Agency review

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physicians found no evidence of a Listing level impairment. (T at 59-69, 71-81, 84-

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95, 97-108).

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psychological consultants and other program physicians, psychologists, and other

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medical specialists are highly qualified physicians, psychologists, and other medical

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specialists who are also experts in Social Security disability evaluation.”).

See 20 CFR § 404.1527 (f)(2)(i)(“State agency medical and

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Dr. David Easley, a consultative orthopedic examiner, noted that Plaintiff had

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good muscle strength, negative straight leg raising test, and normal gait. (T at 327-

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329). He opined that Plaintiff could stand/walk for 6 hours in an 8-hour workday

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and sit for 6 hours in an 8-hour workday. (T at 330).

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In light of the foregoing, this Court finds no error in the ALJ’s conclusion that

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Plaintiff did not have an impairment or combination of impairments that met or

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medically equaled one of the impairments set forth in the Listings, including

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Listings §1.04. (T at 14).

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B.

Medical Opinion Evidence

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In disability proceedings, a treating physician’s opinion carries more weight

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than an examining physician’s opinion, and an examining physician’s opinion is

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given more weight than that of a non-examining physician. Benecke v. Barnhart,

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379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995). If the treating or examining physician’s opinions are not contradicted, they

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can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If

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contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons

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that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d

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1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting

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medical evidence, and/or the absence of regular medical treatment during the alleged

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period of disability, and/or the lack of medical support for doctors’ reports based

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substantially on a claimant’s subjective complaints of pain, as specific, legitimate

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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reasons for disregarding a treating or examining physician’s opinion. Flaten v.

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Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995).

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An ALJ satisfies the “substantial evidence” requirement by “setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating

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his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995,

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1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).

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“The ALJ must do more than state conclusions. He must set forth his own

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interpretations and explain why they, rather than the doctors,’ are correct.” Id.

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In this case, as referenced above, Dr. David Easley, an orthopedic surgeon,

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performed a consultative examination in May of 2013. Dr. Easley opined that

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Plaintiff could perform work at a light exertional level, with some postural and

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environmental limitations. (T at 325-330). The ALJ gave “significant weight” to Dr.

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Easley’s findings when rendering her decision. (T at 17).

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Dr. Easley’s assessment included a finding that Plaintiff was “unable to walk

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on uneven terrain.” (T at 330). The ALJ, while incorporating numerous postural and

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environmental limitations into the RFC, did not include this particular limitation and

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did not explain its absence, even though she had given “substantial weight” to Dr.

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Easley’s assessment. (T at 15).

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This was error, as the ALJ was obliged to address this aspect of the

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consultative examiner’s opinion. However, this Court finds the error harmless.

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Even if one assumes that Plaintiff is unable to walk on uneven terrain, he still would

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not meet the requirements of Listing §1.04 due to the absence of evidence of nerve

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root or spinal cord compromise, as discussed above.

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Further, the ALJ concluded, based on the vocational expert’s testimony, that

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Plaintiff retained the RFC to perform three representative occupations, bench

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assembler, information clerk, and charge account clerk. (T at 19). All of these

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positions are at the sedentary work level. Plaintiff offers no evidence or argument to

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suggest that an inability to walk on uneven terrain would preclude a person from

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performing any of these three positions. See Delavera v. Astrue, No. CV 12-06138,

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2013 U.S. Dist. LEXIS 24031, at *3-4 (Cal. C.D. Feb. 20, 2013)(affirming ALJ’s

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conclusion that claimant retained the RFC to perform sedentary work even with

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limitation precluding walking on uneven terrain).

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Finally, it is well-settled that an inability to walk on uneven terrain is a limited

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finding that does not imply an overall inability to “ambulate effectively,” as that

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term is defined in the Social Security Regulations. See Perez v. Astrue, 831 F. Supp.

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2d 1168, 1176 (C.D. Cal. 2011) (holding that inability to walk on uneven terrain did

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not establish an inability to ambulate effectively).

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An ALJ’s error may be deemed harmless if, in light of the other reasons

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supporting the overall finding, it can be concluded that the error did not “affect[ ] the

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ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

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Cir. 2004); see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th

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Cir. 2006) (describing the harmless error test as whether “the ALJ's error did not

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materially impact his decision”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885

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(9th Cir.2006) (holding that an error is harmless if it was “inconsequential to the

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ultimate nondisability determination”).

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Here, while this Court certainly does not condone the ALJ’s omission of the

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“uneven terrain” finding from her analysis, that error was harmless and does not

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warrant a remand for the reasons outlined above.

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C.

Step Five Analysis

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At step five of the sequential evaluation, the burden is on the Commissioner to

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show that (1) the claimant can perform other substantial gainful activity and (2) a

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“significant number of jobs exist in the national economy” which the claimant can

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perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot

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return to his previous job, the Commissioner must identify specific jobs existing in

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substantial numbers in the national economy that the claimant can perform. See

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Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995).

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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The Commissioner may carry this burden by “eliciting the testimony of a

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vocational expert in response to a hypothetical that sets out all the limitations and

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restrictions of the claimant.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995).

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The ALJ's depiction of the claimant's disability must be accurate, detailed, and

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supported by the medical record. Gamer v. Secretary of Health and Human Servs.,

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815 F.2d 1275, 1279 (9th Cir.1987). “If the assumptions in the hypothetical are not

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supported by the record, the opinion of the vocational expert that claimant has a

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residual working capacity has no evidentiary value.” Gallant v. Heckler, 753 F.2d

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1450, 1456 (9th Cir. 1984).

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Here, the ALJ relied on the vocational expert’s testimony to support her step

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five findings that Plaintiff retained the RFC to perform three representative,

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sedentary jobs that exist in significant numbers in the national economy. (T at 19).

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Plaintiff notes, correctly, that the ALJ did not include the “uneven terrain” limitation

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in the hypothetical presented to the vocational expert. (T at 49-52). This was error.

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The ALJ was obliged to either reject that limitation, and explain why by reference to

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substantial evidence, or accept the limitation and include it in the hypothetical.

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However, this was harmless error for the reasons outlined above. Plaintiff

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offers no evidence or argument that including the uneven terrain limitation would

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have changed the vocational expert’s testimony. Indeed, a review of the Dictionary

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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of Occupational Titles (“DOT”) descriptions for each of the positions identified by

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the vocational expert (and accepted by the ALJ) finds no indication of any

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requirement to ambulate on uneven terrain as part of these sedentary jobs, which are

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performed in an office environment.3 As such, this Court finds no reversible error as

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to this aspect of the ALJ’s decision.

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V.

CONCLUSION

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After carefully reviewing the administrative record, this Court finds

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substantial evidence supports the Commissioner’s decision, including the objective

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medical evidence and supported medical opinions. It is clear that the ALJ thoroughly

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examined the record, afforded appropriate weight to the medical evidence, including

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the assessments of the examining medical providers and the non-examining

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consultants, and afforded the subjective claims of symptoms and limitations an

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appropriate weight when rendering a decision that Plaintiff is not disabled. This

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Court

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Commissioner’s decision.

finds

no

reversible

error

and

substantial

evidence

supports

the

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3

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 The Social Security Administration has taken administrative notice of the Dictionary of

Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n. 8 (9th Cir.
2007)(citing 20 C.F.R. § 416.966(d)(1)).
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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB

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VI. ORDERS

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IT IS THEREFORE ORDERED that:

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Judgment be entered AFFIRMING the Commissioner’s decision; and

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The Clerk of the Court shall file this Decision and Order, serve copies upon

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counsel for the parties, and CLOSE this case.
DATED this 14th day of November 2017,

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/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – FOX v BERRYHILL 5:16-CV-01328-VEB