Bird v. Commissioner of Social Security

Filing 17

ORDER on Plaintiff's Social Security Complaint signed by Magistrate Judge Sheila K. Oberto on 08/03/2017. CASE CLOSED. (Attachments: # 1 Exhibit A)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH BIRD,

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Case No. 1:16-cv-00755-SKO
Plaintiff,

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v.

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NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1

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(Doc. 1)

Defendant.

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ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

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_____________________________________/

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I.

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INTRODUCTION

On May 31, 2016, Plaintiff Joseph Bird (“Plaintiff”) filed a complaint under 42 U.S.C. §

22 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the
23 “Commissioner” or “Defendant”) denying his application for disability insurance benefits
24 (“DIB”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which were
25 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate
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On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration.
See https://www.ssa.gov/agency/commissioner.html (last visited by the court on February 27, 2017). She is therefore
substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20
C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper
defendant”).

1 Judge.2
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II.

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BACKGROUND

On February 21, 2012, Plaintiff filed claims for DIB and SSI payments, alleging he

4 became disabled on April 10, 2006, due to “Scoliosis,” “3 stomach hernias,” “Neck pain,”
5 “Diabetes,” “sharp pain in his legs,” and “shortness of breath.” (Administrative Record (“AR”)
6 85, 92, 101, 260–67, 288, 318, 404.) Plaintiff was born on May 2, 1968, and was 37 years old on
7 the alleged disability onset date. (AR 28.) The highest level of education Plaintiff completed
8 was the eleventh grade. (AR 41.) From 1997 to 2005, Plaintiff was a laborer for an oil company.
9 (AR 275, 290, 301.) From February–September 2005 and April–June 2006, Plaintiff worked for
10 a plumbing company as a service plumber and a plumbing assistant. (AR 275, 290, 301.) From
11 September 2005–April 2006, Plaintiff was a cashier and stocker at a gas station. (AR 275, 290,
12 301.) From April–May 2006, Plaintiff worked as a roadside assistant for a roadside assistance
13 service. (AR 275, 290, 301.)
14 A.

Relevant Medical Evidence3

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On August 17, 2006, Plaintiff presented to James Mullowney, D.O., for left knee pain as a

16 result of “climbing a lot of stairs.” (AR 352.) Dr. Mullowney observed pain and palpation
17 behind Plaintiff’s left knee, mild edema, and an abdominal hernia. (AR 352.) Plaintiff was
18 prescribed Indocin and referred to general surgery. (AR 352.)
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On January 17, 2012, Plaintiff presented at the emergency department with abdominal

20 pain in the umbilical area. (AR 355.) Plaintiff indicated that he had a history of umbilical hernia
21 without surgical repair beginning in 2001, which was aggravated by bowel movements and
22 prolonged sitting. (AR 358.) Plaintiff was observed to be well-developed and well-nourished in
23 no apparent distress and to ambulate without assistance with a steady gait. (AR 355, 359.) An
24 X-ray of Plaintiff’s abdomen was performed that same day, which showed relative paucity of gas
25 in the lower abdomen and no gross abnormality. (AR 354.) The scan did not exclude the
26 possibility of “dilated, fluid-filled bowel loops,” and noted that, if clinically indicated, further
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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 9, 10.)
As Plaintiff’s assertion of error is limited to the ALJ’s RFC and credibility findings, only evidence relevant to those
arguments are set forth below.
3

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1 evaluation of CT abdomen and pelvis is recommended. (AR 354.) Plaintiff was diagnosed with
2 a ventral hernia, released to home care, and prescribed Colace and pain medication. (AR 355,
3 360.) Plaintiff attended follow up visits with Christie Ceballos, P.A., related to his abdominal
4 hernia from January–April 2012. (AR 364–75).
5
6 repair.

On February 8, 2012, Plaintiff consulted surgeon John Porteous, M.D., regarding a hernia
(AR 681–83.)

7 abdominal pain.

Plaintiff reported normal appetite, no nausea or vomiting, and no

Dr. Porteous observed that Plaintiff “weighs 299 pounds and has a large

8 abdomen with a significant ventral hernia” that is “reducible when [Plaintiff] lies down.” (AR
9 682.) Dr. Porteous discussed with Plaintiff the “negative effects of obesity on hernia repair,” and
10 recommended that Plaintiff lose 25 to 30 pounds, noting that he did not believe a hernia repair
11 would “hold at his current weight and size.” (AR 682.) Dr. Porteous advised Plaintiff to return
12 in a few months, at which time he would be re-weighed. (AR 683.)
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Plaintiff participated in a telephone interview with a representative of the Social Security

14 Administration on March 2, 2012. (AR 296–98.) The representative noted that Plaintiff had no
15 difficulty hearing, reading, breathing, understanding, concentrating, talking, and answering
16 questions, and that Plaintiff was coherent, “very talkative,” and “polite.” (AR 297.)
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On May 30, 2012, Disability Determinations Service non-examining consultant, Martha

18 A. Goodrich, M.D., reviewed the record and analyzed the case. (AR 88–91, 94–98.) She
19 concluded that there was insufficient medical evidence prior to the date of last insured to evaluate
20 Plaintiff’s claim for DIB benefits. (AR 88–89.) Regarding Plaintiff’s claim for SSI benefits, Dr.
21 Goodrich observed that Plaintiff’s physical exams were normal except for a noted ventral hernia
22 that is “easily reducible,” and deemed him non-severe. (AR 88, 95.) She indicated that Plaintiff
23 demonstrated the maximum sustained capability for light work. (AR 90, 97.)
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Another Disability Determinations Service non-examining consultant, John Durfor, M.D.,

25 reviewed the record and analyzed the case on October 24, 2012. (AR 105–118.) Dr. Durfor
26 found Plaintiff’s alleged limitations “partially supported” by the medical records, and indicated
27 that the records indicate Plaintiff is treated with medication.

(AR 106, 115.)

Dr. Durfor

28 concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently,
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1 and stand, walk, and sit 6 hours in an 8-hour workday, with no other limitations. (AR 106–07,
2 115–16.)
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Plaintiff saw PA Ceballos on December 13, 2012, complaining of chronic back, neck, and

4 shoulder pain. (AR 766.) He reported that he went to Texas for a job, but there was no job when
5 he got there. (AR 766.) Plaintiff was referred to physical therapy as a result of his back, neck,
6 and shoulder pain. (AR 766.)
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Plaintiff again presented to the emergency department for abdominal pain and vomiting

8 on December 30, 2012. (AR 640.) Plaintiff described his pain as aching, shooting, and stabbing,
9 and rated it a 10 out of 10. (AR 641.) A CT scan of his abdomen found Plaintiff’s bowel gas
10 pattern “grossly unremarkable,” with no definite evidence of bowel obstruction. (AR 636.)
11 Plaintiff was released with improved symptoms and given medication for nausea and pain. (AR
12 650–52.)
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On January 13, 2013, Plaintiff complained of right shoulder pain he sustained a result of

14 wrestling with his son. (AR 619.) Plaintiff described the pain as sharp, non-radiating, and
15 continuous. (AR 619.) Upon examination, Joe Douglas, M.D., observed Plaintiff had full ranges
16 of active and passive motion in the left arm, limited active and passive ranges of motion in the
17 right arm, was able to abduct about 80 degrees at the right shoulder, and was able to fully bear
18 weight. (AR 623.) An X-ray performed that day showed “some degenerative changes” at the
19 acromioclavicular joint, a normal glenohumeral joint, and no evidence of acute fracture or
20 dislocation. (AR 618.) Plaintiff was prescribed medication for muscle spasms and pain control.
21 (AR 616–17.)
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Plaintiff again presented to the emergency department on January 20, 2013, with

23 abdominal pain. (AR 598–604.) On February 7, 2013, Plaintiff underwent surgery by Dr.
24 Porteous to repair approximately four different hernias. (AR 427–29, 433–38.) The hernias had
25 “all coalesced into one defect” and were repaired using “a single piece of mesh.” (AR 427.) Dr.
26 Porteous saw Plaintiff on February 15, 2013, for a post-surgical follow up appointment, and
27 instructed Plaintiff to continue to wear an abdominal binder when not in bed and attempt to lose
28 weight to “take the pressure off the hernia repair.” (AR 688.) On March 6, 2013, Dr. Porteous
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1 noted no evidence of recurrence of the hernia. (AR 690.) He discussed “activity restrictions”
2 with Plaintiff and advised Plaintiff to wear the abdominal binder an additional two months when
3 he is up and about. (AR 690.) Dr. Porteous recommended that Plaintiff see him when necessary.
4 (AR 690.)
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Plaintiff saw Dr. Porteous on July 3, 2013, complaining of severe pain and inability to

6 work. (AR 692.) Specifically, Plaintiff indicated that he had tried to go back to work but the
7 “surgical site hurts him too much.” (AR 692.) Plaintiff’s abdominal examination showed a
8 recurrence of the hernia with no other defects and no incarceration. (AR 692.) A CT scan of
9 Plaintiff’s abdomen performed on July 11, 2013, showed postsurgical changes associated with
10 ventral hernia repair with no recurrent hernia, as well as “[m]ild scoliosis and degenerative
11 disease of the spine.” (AR 706-07.) At a follow up appointment July 19, 2013, Dr. Porteous
12 noted Plaintiff’s CT scan results showing no recurrent total abdominal hernia (AR 706-07),
13 despite Dr. Porteous’ view that Plaintiff’s abdomen “palpate[d] like a hernia.” (AR 694.) Dr.
14 Porteous explained that Plaintiff’s weight was “much too large for any attempt at repeat repair”
15 and that he had to lose “a significant amount of weight” before the possibility of another repair.
16 (AR 694.) Dr. Porteous speculated that “it may be the repair is just stretching.” (AR 694.)
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On July 29, 2013, Plaintiff presented to PA Ceballos with right shoulder pain. (AR 734.)

18 An X-ray was performed of Plaintiff’s right shoulder on August 13, 2013, which showed arthritic
19 changes but no acute findings. (AR 783.) PA Ceballos diagnosed Plaintiff with osteoarthritis in
20 his right shoulder on August 29, 2013, and prescribed him pain medication. (AR 729–32.)
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On October 16, 2013, Plaintiff attended a follow up appointment with Dr. Porteous. (AR

22 696.) He registered a five-pound weight gain from his last appointment three months prior. (AR
23 696.) Dr. Porteous once again discussed the need for Plaintiff to lose weight before attempting a
24 second hernia repair. Plaintiff was instructed to return for a follow up appointment in 2-3 months
25 and to try to reduce his meal portions and increase his exercise. (AR 696.) On February 18,
26 2014, no weight loss was noted, and Plaintiff was advised to return in 3–4 months. (AR 697.)
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Plaintiff was seen by licensed clinical social worker Darlene Thompson on October 24,

28 2013, for symptoms of depression and anxiety. (AR 786.) Plaintiff reported having a lot of
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1 “situational stressors,” such as loss of job, inability to work, and housing and financial issues.
2 (AR 786.) He stated he had an irritable and depressed mood, difficulty sleeping, low energy, and
3 flashback memories relating to a prior sexual assault. (AR 786.) On November 23, 2013,
4 Plaintiff was indicated as having been prescribed Paxil for depression. (AR 722.)
5 B.

Plaintiff’s Statement

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On May 24, 2012, Plaintiff completed an “Exertion Questionnaire.” (AR 313–15.)

7 Plaintiff stated that he lived in a house with family. (AR 313.) He described his disabling
8 symptoms as pain in his neck and back, and his hernia. (AR 313.) When asked what kinds of
9 things he does on an average day and how those activities make him feel, Plaintiff responded
10 “not to [sic] good.” (AR 313.) He stated that he hurts after he walks a lot. (AR 313.) Plaintiff
11 reported he does not climb stairs, cannot lift anything, and cannot carry things very far. (AR
12 314.) Plaintiff shopped for groceries and cleaned his home, but did not drive a car, work on
13 cars, or perform yard work. (AR 314.) He reported that he can only perform housework or
14 other chores for about 10 minutes before having to stop, stating that his “neck and back,
15 sometime [sic] my hernia stop me from doing anything.” (AR 315.) Plaintiff slept for 8 hours a
16 day and napped for about 1 hour during the day. (AR 315.) He listed no medications and no
17 assistive devices. (AR 315.)
18 C.

Administrative Proceedings

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Plaintiff filed applications for DIB and SSI payments on February 21, 2012, alleging he

20 became disabled on April 10, 2006. (AR 85, 92, 101, 260–67, 288, 318, 404.) The Social
21 Security Administration denied Plaintiff’s applications for benefits initially on June 7, 2012, and
22 again on reconsideration on October 26, 2012. (AR 126–33, 138–43.) Plaintiff requested a
23 hearing before an Administrative Law Judge (“ALJ”). (AR 144–49.) On April 22, 2014,
24 Plaintiff appeared with counsel and testified before an ALJ as to his alleged disabling
25 conditions. (AR 36–71.)
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In a decision dated June 12, 2014, the ALJ found that Plaintiff was not disabled. (AR

27 22–34.) The ALJ’s decision became the final decision of the Commissioner when the Appeals
28 Council denied Plaintiff’s request for review on March 30, 2016. (AR 1–7.)
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The highest level of education Plaintiff completed was eleventh grade. (AR 41.) Plaintiff

Plaintiff’s Testimony

3 said he lives with his fiancée, mother, and 16-year-old stepson. (AR 47.) Plaintiff’s fiancée is a
4 caregiver and his mother is disabled. (AR 47.)
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Plaintiff testified that he has pain “in all of my body, in my arms and legs” caused by

6 neuropathy as a result of diabetes. (AR 42.) Plaintiff also experienced tingling and numbness in
7 his fingers and in both thighs as a result of his diabetes. (AR 43, 52.) Plaintiff testified he has a
8 new hernia located above his prior hernia, and that he is scheduled to see the doctor on June 15,
9 2014, to determine whether surgery is warranted. (AR 44–45.)
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Plaintiff stated that if he were to go back to work full-time, he would have trouble

11 bending over and lifting things. (AR 51.) Plaintiff testified he has right shoulder arthritis and
12 constant pain that gets worse with use, and that he tries to “massage it, put medicine on it, take
13 pills for it, medicines for it.” (AR 59.) He stated that he could perform a job that required
14 reaching forward for “less than half a day.” (AR 59.) Plaintiff testified that he is left handed, and
15 that when he extends his arms to put on a long-sleeved jacket, he puts his right arm in first. (AR
16 60.)
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Plaintiff testified the longest he can use his hands before he has to stop and rest is 30

18 minutes, and would be able to resume use of them after 30 to 40 minutes. (AR 52–53.) He stated
19 that it gets progressively harder to use his hands throughout the day, and he would only be able to
20 use his hands “less than half a day” in an 8-hour day. (AR 53.) Plaintiff testified that the most he
21 can lift is 5 pounds due to his hernia, but that his doctor restricted him to lifting a maximum of 10
22 pounds. (AR 53–54.) He stated that due to the numbness in his leg he can only stand for 30 to 45
23 minutes at a time, and has to elevate his legs while sitting. (AR 54.) Plaintiff testified that he
24 either lies down or elevates his legs “[a]bout a couple hours” per day. (AR 54.) He stated that it
25 is easier to walk than stand, and that it would be difficult to do a job where he was on his feet for
26 most of the day. (AR 54–55.)
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Plaintiff testified that he would also have problems working due to his diabetes, which he

28 has trouble controlling, and his hernia. (AR 51.) Plaintiff said he took prescription medications
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1 that made him feel dizzy, but he informed his doctor who adjusted his medication. (AR 45–46.)
2 He testified that he started treating his diabetes with oral medication, and then started using
3 insulin beginning of 2014. (AR 55.) He takes insulin and checks his blood sugar four times a
4 day. (AR 42.) Plaintiff stated that he experiences high and low blood sugars twice a day, and
5 that he takes extra insulin to improve his symptoms, which takes 45 minutes. (AR 57.) Plaintiff
6 testified that during these episodes, the pain in his arms and legs increases, his hernia starts
7 hurting, and he becomes nauseated. (AR 57.)
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Plaintiff sought treatment for mental health at one time, and testified he was currently on

9 medication for depression. (AR 46.) Plaintiff said the medication helps his depression at times.
10 (AR 46.) He stated that he is depressed by “not being able to work like I want to, to the point
11 where I can’t pay the bills, and sometimes I get the idea of I want to, you know, end it.” (AR 46.)
12 Plaintiff testified his suicidal thoughts started when he “couldn’t work,” and that he waited until
13 October 2013 to see a behavioral health doctor because he didn’t have insurance and couldn’t
14 afford it. (AR 55.) He stated that “stress” from “being around other things, other people, and
15 knowing that I’m in pain” would keep him from working. (AR 58.) Plaintiff testified that he gets
16 stressed out at home by “[n]ot being able to help pay the bills” and by his stepson. (AR 58.) He
17 stated when he gets stressed out, he isolates himself from family and has suicidal thoughts. (AR
18 58.) Plaintiff testified that his mental health issues began in 2013. (AR 61.)
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Plaintiff testified that, when home alone, he cooks meals using the microwave, tries to

20 relax, watches television for 1.5 to 2 hours total, and checks his Facebook page and email. (AR
21 48–49.) He stated he has a driver’s license and drives three times a week, normally to the store.
22 (AR 49–50.) Plaintiff testified that he has no other outside activities, and has not taken any long
23 trips since his alleged date of onset. (AR 50–51.)
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Plaintiff testified he smokes five cigarettes a day and has been asked to cut down his

25 smoking by his doctor. (AR 43.) Plaintiff is 6’ 10” and weighs 315 pounds. (AR 44.) He was
26 asked by his doctor to lose 25 pounds. (AR 44.) He testified that he has not performed any work,
27 including part-time or side jobs, after 2006. (AR 41.) Plaintiff stated that he had to quit his full28 time roadside assistance job after one month “[b]ecause of the bending over changing tires and
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1 stuff like that was causing problems.” (AR 62.) Plaintiff testified that he performed full-time
2 work as a plumbing assistant doing short-term jobs. (AR 63.) He stated that his work as a
3 construction laborer was at an apprentice level, and that he framed the walls for houses lifting
4 more than 100 pounds and used power tools and hand tools. (AR 63–64.)
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Regarding the medical record, Plaintiff’s counsel informed the ALJ at the hearing that

6 counsel was missing nerve conduction studies that were not included with Plaintiff’s treating
7 physician’s records, and indicated that he had twice-requested the records be sent. (AR 39–40,
8 70.) The ALJ requested that the records be provided to him by May 9, 2014. (AR 40.)
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2.

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Vocational Expert’s Testimony

A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a

11 framer, Dictionary of Operational Titles (DOT) code 869.684-010, which was medium exertional
12 work, with a specific vocational preparation (SVP)4 of 4 and “very heavy” as performed. (AR
13 65–66.) The VE also identified Plaintiff’s past work of road side assistant (DOT code 915.68414 010, heavy, SVP 3); plumbers assistant (DOT code 869.664-014, heavy, SVP 4); plumber (DOT
15 code 862.381-030, heavy, SVP 7); and cashier/stocker (DOT code 211.462-010, light, SVP 2).
16 (AR 348.)
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In a first hypothetical, the ALJ asked the VE to consider a person of Plaintiff’s age,

18 education, and with his work history, as well as transferrable or acquired skills the VE previously
19 identified. (AR 67.) The VE was also to assume this person could sit 6 hours but stand and/or
20 talk less than 2 hours each; lift and/or carry less than 10 pounds occasionally; never climb,
21 balance, stoop, kneel, crouch, or crawl; would need numerous unscheduled rest breaks—more
22 frequently than an employer would normally allow—and would not have sufficient concentration
23 ability for even simple, routine, repetitive tasks. (AR 67.) The VE testified that there was no
24 such work that the person could perform. (AR 67.)
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The ALJ then posed a second hypothetical regarding a person of Plaintiff’s age,
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Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991).
Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the
highest level – over 10 years of preparation). Id.

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1 education, and with his work history, as well as transferrable or acquired skills the VE previously
2 identified, who could work at jobs involving simple, routine, repetitive tasks; could also sit,
3 stand, walk 6 out of 8 hours each with normal breaks; lift and/or carry 20 pounds occasionally
4 and 10 pounds frequently; could never climb ladders, ropes, or scaffolds; and could occasionally
5 climb ramps or stairs. (AR 68.) The VE testified that this individual could perform Plaintiff’s
6 past work of cashier/stocker (AR 348), and could also perform other work in the national
7 economy as an assembler, DOT code 701.687.010, light exertion level and SVP 2; hand packer,
8 DOT code 920.687-166, light exertion level and SVP 2; and photocopying machine operator,
9 DOT code 207.685-014, light exertion level and SVP 2. (AR 68–69.) The VE testified that all of
10 these jobs require the worker to be on his/her feet more than 6 hours in an 8-hour day. (AR 69.)
11 D.

The ALJ’s Decision

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In a decision dated June 12, 2014, the ALJ found that Plaintiff was not disabled. (AR 22–

13 35.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 416.920. (AR
14 24–29.) The ALJ decided that Plaintiff has not engaged in substantial gainful activity since
15 January 1, 2012, the alleged onset date (step 1). (AR 24.) The ALJ found that Plaintiff had the
16 severe impairments of (1) hernias, (2) diabetes, (3) obesity, and (4) depression (step 2). (AR 24)
17 However, Plaintiff did not have an impairment or combination of impairments that met or
18 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
19 (“the Listings”) (step 3). (AR 24–26.) The ALJ determined that Plaintiff had the residual
20 functional capacity (“RFC”)5
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to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he can perform only simple, routine, and repetitive tasks,
occasionally climb ramps and stairs, and never climb ladders, ropes, or
scaffolds.

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(AR 26.)
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RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a
work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule.
Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result
from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a
claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay
evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable
impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

10

1

Given his RFC, the ALJ determined that Plaintiff was not disabled because he was able to

2 perform his past relevant work as a cashier/stocker (DOT 231.462-010, light exertion level, and
3 SVP 2) (step 4). (AR 28.) The ALJ made the alternative finding that Plaintiff could perform a
4 significant number of other jobs in the local and national economies, specifically assembler, hand
5 packer, and photocopying machine operator (step 5). (AR 28–29.) In reaching his conclusions,
6 the ALJ also determined that Plaintiff’s subjective complaints were not fully credible. (AR 27–
7 28.)
8
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III.

SCOPE OF REVIEW

The ALJ’s decision denying benefits “will be disturbed only if that decision is not

10 supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599,
11 601 (9th Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its
12 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).
13 Instead, the Court must determine whether the Commissioner applied the proper legal standards
14 and whether substantial evidence exists in the record to support the Commissioner’s findings.
15 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence is more than a
16 mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198
17 (9th Cir. 2008). “Substantial evidence” means “such relevant evidence as a reasonable mind
18 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
19 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court
20 “must consider the entire record as a whole, weighing both the evidence that supports and the
21 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by
22 isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028,
23 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
24
25

IV.

APPLICABLE LAW

An individual is considered disabled for purposes of disability benefits if he or she is

26 unable to engage in any substantial, gainful activity by reason of any medically determinable
27 physical or mental impairment that can be expected to result in death or that has lasted, or can be
28 expected to last, for a continuous period of not less than twelve months.
11

42 U.S.C.

1 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The
2 impairment or impairments must result from anatomical, physiological, or psychological
3 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic
4 techniques and must be of such severity that the claimant is not only unable to do his previous
5 work, but cannot, considering his age, education, and work experience, engage in any other kind
6 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)–(3),
7 1382c(a)(3)(B), (D).
8

The regulations provide that the ALJ must undertake a specific five-step sequential

9 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine
10 whether the claimant is currently engaged in substantial gainful activity.

20 C.F.R. §§

11 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the
12 claimant has a severe impairment or a combination of impairments significantly limiting his from
13 performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the
14 ALJ must determine whether the claimant has a severe impairment or combination of
15 impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20
16 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the
17 ALJ must determine whether the claimant has sufficient residual functional capacity despite the
18 impairment or various limitations to perform his past work. Id. §§ 404.1520(f), 416.920(f). If
19 not, in Step Five, the burden shifts to the Commissioner to show that the claimant can perform
20 other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g),
21 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there
22 is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir.
23 1999); 20 C.F.R. §§ 404.1520, 416.920.
24
25

V.

DISCUSSION

Plaintiff contends that the ALJ erred in failing to provide evidence to support his RFC

26 findings. (Doc. 15 at 6.) Plaintiff also asserts that the ALJ erred in failing to provide legally
27 sufficient reasoning for finding Plaintiff not credible. (Id.) The Commissioner contends that the
28 ALJ’s RFC findings were supported by substantial evidence, and that the ALJ properly found
12

1 Plaintiff not credible. (Doc. 16 at 4–10.)
2 A.
3
4
5

The ALJ Erred in Failing Adequately to Explain How He Determined the Particular
Limitations in Plaintiff’s Residual Functional Capacity Assessment.
1.

Legal Standard

The RFC is the “maximum degree to which [a plaintiff] retains the capacity for sustained

6 performance of the physical-mental requirements of jobs.” 20 C.F.R. 404, Subpt. P, App. 2 §
7 200(c). It is an administrative decision as to the most a plaintiff can do, despite his limitations.
8 Social Security Ruling (“SSR”) 96–8p. The ALJ must assess all of the relevant evidence,
9 including evidence regarding symptoms that are not severe, to determine if the claimant retains
10 the ability to work on a “regular and continuing basis,” e.g., eight hours a day, five days a week.
11 Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 833 (9th Cir.
12 1995); SSR 96–8p. The RFC assessment must be based on all of the relevant evidence in the
13 case record, such as: medical history; the effects of treatment, including limitations or restrictions
14 imposed by the mechanics of treatment (e.g., side effects of medication); reports of daily
15 activities; lay activities; recorded observations; medical source statements; effects of symptoms,
16 including pain, that are reasonably attributed to a medically determinable impairment; evidence
17 from work attempts; need for structured living environment; and work evaluations. SSR 96–8p.
18

In making an RFC determination, the ALJ shall set out a detailed and thorough summary

19 of the facts and conflicting clinical evidence, state any interpretations, and make findings.
20 Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600–01 (9th Cir. 1999) (citation
21 omitted). An ALJ is not required to discuss all the evidence presented, but must explain the
22 rejection of uncontroverted medical evidence, as well as significant probative evidence. Vincent
23 on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (citation omitted).
24 Moreover, an ALJ must consider all of the relevant evidence in the record and may not point to
25 only those portions of the records that bolster his findings. See, e.g., Holohan v. Massanari, 246
26 F.3d 1195, 1207 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some entries in
27 the plaintiff’s records while ignoring others); Aukland v. Massanari, 257 F.3d 1033, 1035 (9th
28 Cir. 2001) (“[T]he [ALJ]’s decision ‘cannot be affirmed simply by isolating a specific quantum
13

1 of supporting evidence.’”) (citing Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)); see
2 also Reddick, 157 F.3d at 722–23 (it is impermissible for the ALJ to develop an evidentiary basis
3 by “not fully accounting for the context of materials or all parts of the testimony and reports”). In
4 addition, “an explanation from the ALJ of the reason why probative evidence has been rejected is
5 required so that . . . [the][C]ourt can determine whether the reasons for rejection were improper.”
6 Cotter v. Harris, 642 F.2d 700, 706–07 (3d Cir. 1981) (internal citation omitted). See also Flores
7 v. Shalala, 49 F.3d 562, 571 (9th Cir. 1995) (The “ALJ’s written decision must state reasons for
8 disregarding [such] evidence.”)
9
10

2.

Analysis

In his RFC, the ALJ limited Plaintiff to “simple, routine, and repetitive tasks”;

11 “occasionally” climbing ramps and stairs; and “never” climbing ladders, ropes, or scaffolds. (AR
12 26.) This finding in the RFC would indicate that the ALJ viewed Plaintiff’s physical and mental
13 limitations as impairment-related, but the ALJ’s finding does not identify any medical opinion
14 with such limitations or explain how those limitations were derived or what evidence supports
15 them.
16

The only opinion evidence in the record as to Plaintiff’s physical limitations is the

17 opinions of state agency medical consultants Dr. Goodrich and Dr. Durfor. Dr. Goodrich opined
18 that Plaintiff’s hernia was “easily reducible,” that his impairments were non-severe, and that he
19 had demonstrated the maximum sustained capability for light work. (AR 88–89, 90, 95, 97.) Dr.
20 Durfor found Plaintiff’s alleged limitations “partially supported” by the medical records, and
21 indicated that the records indicate Plaintiff is treated with medication. (AR 106, 115.) He
22 concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently,
23 and could stand, walk, and sit 6 hours in an 8-hour workday, with no other limitations. (AR 106–
24 07, 115–16.) Neither Dr. Goodrich nor Dr. Durfor imposed postural limitations. The ALJ,
25 however, made no mention of these opinions in his decision, leaving the Court to conclude that
26 he simply ignored them and impermissibly substituted his own judgment. See Sawyer v. Astrue,
27 303 Fed. App’x 453, 455 (9th Cir. 2008) (citations omitted) (The ALJ is “required to consider as
28 opinion evidence” the findings of state agency medical consultant, and also is “required to
14

1 explain in his decision the weight given to such opinions.”); Day, 522 F.2d at 1156 (ALJ may not
2 make his or her own lay medical assessment); Bridges v. Colvin, No. CV 16-1130-E, 2016 WL
3 7167870, at *5 (C.D. Cal. Dec. 8, 2016). See also SSR 96–6p (“Administrative law judges . .
4 .may not ignore the [] opinions [of state agency medical and psychological consultants] and must
5 explain the weight given to the opinions in their decisions.”); SSR 96–5p (State agency “medical
6 and psychological consultant findings about the nature and severity of an individual’s
7 impairment(s), including any RFC assessments, become opinion evidence,” and “administrative
8 law judges . . . must address the[se] opinions in their decisions.”).
9

The ALJ also improperly rejected probative medical evidence relating to Plaintiff’s

10 alleged right shoulder pain, based on a mischaracterization of the evidence in the record. The
11 ALJ found that Plaintiff “reported right shoulder pain once, on January 13, 2013,” and concluded,
12 apparently based on that finding, that “[t]he evidence clearly does not support his claims
13 regarding his right shoulder/arm dysfunction.” (AR 27.) The record demonstrates, however, that
14 Plaintiff reported chronic back, neck, and shoulder pain to treating PA Ceballos on December 13,
15 2012, and was referred to physical therapy. (AR 766.) Plaintiff presented to PA Ceballos with
16 right shoulder pain again on July 29, 2013. (AR 734.) An X-ray was performed of Plaintiff’s
17 right shoulder on August 13, 2013, which showed arthritic changes. (AR 783.) PA Ceballos
18 diagnosed Plaintiff with osteoarthritis in his right shoulder on August 29, 2013, and prescribed
19 him pain medication. (AR 729–32.) The medical evidence of Plaintiff’s osteoarthritis in his right
20 shoulder is significant probative evidence that the ALJ should not have rejected without proper
21 discussion.6 See Vincent, 739 F.2d at 1394–95; Flores, 49 F.3d at 571. Thus, based on the
22 relevant record, the ALJ’s conclusion that the evidence “clearly” did not support Plaintiff’s
23 claims of right shoulder/arm dysfunction is not supported by substantial evidence in the record as
24 a whole. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Glasgow v. Astrue, No.
25 CV-09-0223-CI, 2010 WL 3363606, at *7 (E.D. Wash. Aug. 20, 2010).
26

With respect to mental limitations, no state psychologist was consulted to opine as to

27
28

6

This mischaracterization is indicative of the ALJ’s failure to provide a careful medical analysis of over 300 pages of
medical records.

15

1 Plaintiff’s mental limitations, and there is no opinion evidence in the record otherwise limiting
2 Plaintiff to “simple, routine, and repetitive tasks.” Plaintiff was seen by licensed clinical social
3 worker Ms. Thompson on October 24, 2013, for symptoms of depression and anxiety, and the
4 evidence shows that Plaintiff was prescribed Paxil for depression. (AR 722, 786.) It is possible
5 that this evidence could support the restriction of “simple, routine, and repetitive tasks” the ALJ
6 adopted. The ALJ, however, did not purport to rely on this evidence. The evidence upon which
7 the ALJ did rely, if any, remains unknown, as he impermissibly failed to offer any reason(s) for
8 the imposition of this limitation. See Smith v. Astrue, No. EDCV 10–1393–JEM, 2011 WL
9 2749561, at *3, 6 (C.D. Cal. July 13, 2011) (reversing and remanding where the ALJ limited the
10 plaintiff to “non-public object oriented simple repetitive tasks” without any explanation or
11 citation to evidence in the record and without disclosing his reasoning).
12

In sum, while the Commissioner regards overall RFC assessments as an administrative

13 determination for the ALJ to make, SSR 96–5p, 20 C.F.R. 404.1527(e), an ALJ’s RFC
14 determination nonetheless must be supported by substantial evidence and the reasoning behind
15 the RFC explained. 42 U.S.C. § 405(b); 20 C.F.R. § 405.373. Here, in making his RFC findings,
16 the ALJ merely described the medical evidence and then stated conclusions, without explaining
17 how he arrived at his conclusions or what evidence supports his conclusions.

No medical

18 opinions specifically endorse the particular limitations the ALJ defined in the RFC assessment.
19 Without adequate explanation of the record, without specific support from an expert source, and
20 without potentially synthesizing testimony from a medical expert, the ALJ apparently defined his
21 own limitations for Plaintiff. This was error. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th
22 Cir. 1975) (the ALJ was not qualified as a medical expert and therefore could not permissibly go
23 outside the record to consult medical textbooks for purpose of making his own assessment of the
24 claimant’s physical condition); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay
25 person, . . . the ALJ was simply not qualified to interpret raw medical data in functional terms and
26 no medical opinion supported the determination.”); Manso–Pizarro v. Sec’y of Health and
27 Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (“With few exceptions, . . . an ALJ, as a layperson,
28 is not qualified to interpret raw data in a medical record.”); Rohan v. Chater, 98 F.3d 966, 970
16

1 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own
2 independent medical findings.”).
3

An error “is harmless where it is inconsequential to the ultimate nondisability

4 determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations
5 omitted). In light of the VE’s testimony based on the ALJ’s RFC findings, the Court cannot
6 deem the ALJ’s errors to have been harmless. See Blessing v. Astrue, No. 12–cv–05275–JRC,
7 2013 WL 316153, at *9 (W.D. Wash. Jan. 28, 2013) (reversing and remanding with instructions
8 that the RFC based on an improper evaluation of the medical evidence be “re-done” because
9 “[t]he determination regarding an RFC depends on a proper evaluation of the medical
10 evidence.”); Hines v. Astrue, No. 11-CV-05252 BHS, 2012 WL 834310, at *7 (W.D. Wash. Feb.
11 13, 2012) (“[O]n remand, the ALJ should re-evaluate the residual functional capacity, taking into
12 consideration the conclusions of the state agency experts and providing an explanation of the
13 weight given to such opinions.”). Cf. Papaccio v. Colvin, No. CV-16-01225-PHX DGC, 2017
14 WL 1241880, at *6 (D. Ariz. Apr. 4, 2017) (where the ALJ’s RFC finding included only
15 “conclusory explanations” and was not “specific” and “legitimate” as is required to reject a
16 contradicting physician opinion, the Court remanded and instructed the ALJ to “provide a more
17 thorough explanation of his reasoning behind weight given or not given to medical opinions used
18 in reaching that determination.”); Reeves v. Astrue, No. ED CV 07-1322-PLA, 2008 WL
19 5179035, at *5 (C.D. Cal. Dec. 10, 2008) (same).
20 B.

Remand for Further Proceedings is Appropriate.

21

The decision of whether to remand for further proceedings or order an immediate award

22 of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175–78
23 (9th Cir. 2000). The Ninth Circuit has put forth a “test for determining when evidence should be
24 credited and an immediate award of benefits directed.” Harman, 211 F.3d at 1178. It is
25 appropriate where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such
26 evidence, (2) there are no outstanding issues that must be resolved before a determination of
27 disability can be made, and (3) it is clear from the record that the ALJ would be required to find
28 the claimant disabled were such evidence credited. Id. (quoting Smolen v. Chater, 80 F.3d 1273,
17

1 1292 (9th Cir. 1996)).
2

Here, outstanding issues must be resolved. Cf. Smolen, 80 F.3d at 1292. There is a large

3 volume of medical and other evidence, and the record is not conclusive. The ALJ is responsible
4 for determining credibility and resolving ambiguities and conflicts in the medical evidence.
5 Reddick, 157 F.3d at 722; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the medical
6 evidence in the record is not conclusive, sole responsibility for resolving conflicting testimony
7 and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
8 1982) (citations and quotations omitted).

Therefore, remand is appropriate to allow the

9 Commissioner the opportunity to consider properly all of the medical evidence as a whole and to
10 incorporate the properly considered medical evidence into the consideration of Plaintiff’s RFC.
11 See id. The ALJ will then make a new RFC determination incorporating all of Plaintiff’s credible
12 limitations. Additional relevant records may be requested by the Commissioner, or submitted by
13 Plaintiff, including the nerve conduction studies, which are referenced in the record (AR 39–40,
14 70), as well as records relating to Plaintiff’s Facebook webpage that he testified he maintains (AR
15 48–49).7 Attempts to obtain additional records should be described in the record. Finally, new
16 vocational expert testimony must be taken at steps four and five to consider the effects of
17 Plaintiff’s newly-assessed RFC on his occupational base. See Gonzalez v. Sullivan, 914 F.2d
18 1197, 1202 (9th Cir. 1990).
19

Because the ALJ’s consideration of the medical evidence clearly requires reevaluation,

20 there is no need to address fully the remaining issues in Plaintiff’s Opening Brief. However, the
21 Court notes that the medical evidence was not evaluated properly, and a determination of a
22 claimant’s credibility relies in part on the assessment of the medical evidence. See 20 C.F.R. §
23 404.1529(c). The entire record should therefore be evaluated anew.
24 //
25
26
27
28

7

A cursory review of a publicly-available Facebook website appearing to belong to Plaintiff suggests there is reason
to question whether Plaintiff is in fact disabled.
See Joe Bird, FACEBOOK (July 19, 2017),
https://www.facebook.com/joe.bird.357, attached hereto as Exhibit A. Because this information was not in the
record and therefore not relied on by the ALJ, the Court may not rely on it now to uphold his decision. See Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225–26 (9th Cir. 2009). But the Court nevertheless observes that this
information “create[s] serious doubt that [Plaintiff was], in fact, disabled” during the time period alleged. Garrison
v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).

18

1

VI.

2

CONCLUSION AND ORDER

Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

3 substantial evidence and is, therefore, VACATED and the case is REMANDED to the ALJ for
4 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter
5 judgment in favor of Plaintiff Joseph Bird and against Defendant Nancy A. Berryhill, Acting
6 Commissioner of Social Security.
7
8

IT IS SO ORDERED.

9 Dated:
10

August 3, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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