Underwood v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 6/8/15: Plaintiff's motion for summary judgment (ECF No. 14) is GRANTED. The Commissioner's cross-motion for summary judgment (ECF No. 17) is DENIED. The action is remanded for further proceedings consistent with this order. Judgment is entered for plaintiff. The Clerk of Court shall close this case. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD WARDELL UNDERWOOD,

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Plaintiff,

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No. 2:14-cv-1326-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under

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Title II of the Social Security Act (“Act”).1 In his motion for summary judgment, plaintiff

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principally contends that the Commissioner erred by finding that plaintiff was not disabled from

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April 17, 2011, plaintiff’s alleged disability onset date, through the date of the ALJ’s decision.

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(ECF No. 14-1.) The Commissioner filed an opposition to plaintiff’s motion and a cross-motion

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for summary judgment. (ECF No. 17.) Thereafter, plaintiff filed a reply brief. (ECF No. 18.)

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This action was initially referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and
both parties voluntarily consented to proceed before a United States Magistrate Judge for all
purposes. (ECF Nos. 6, 8.)
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For the reasons that follow, the court GRANTS plaintiff’s motion for summary judgment,

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DENIES the Commissioner’s cross-motion for summary judgment, and remands the action for

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further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

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I.

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BACKGROUND
Plaintiff was born on April 21, 1956, and has completed four years of college with a

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Bachelor of Science degree in Software Development. (Administrative Transcript (“AT”) 16, 35,

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57, 154, 206.) Plaintiff formerly worked primarily as a tax preparer and general office clerk, has

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taken continuing education courses in tax preparation, and has the ability to speak and understand

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English. (AT 36-37, 154.) On August 12, 2011, plaintiff applied for DIB, alleging that he was

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unable to work as of April 17, 2011, due to congestive heart failure, diabetes, high blood pressure,

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chest pain, and coronary artery disease. (AT 13, 153.) After the Commissioner denied plaintiff’s

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application initially and on reconsideration, plaintiff requested a hearing before an administrative

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law judge (“ALJ”). (AT 13.) The hearing took place on August 20, 2012, at which plaintiff

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(represented by an attorney) testified. (AT 34-56.)

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In a decision dated February 7, 2013, the ALJ determined that plaintiff had not been under

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a disability, as defined in the Act, from April 17, 2011, plaintiff’s alleged disability onset date,

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through the date of the ALJ’s decision. (AT 13-21.) The ALJ’s decision became the final

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decision of the Commissioner when the Appeals Council denied plaintiff’s request for review on

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April 14, 2014. (AT 1-3.) Thereafter, plaintiff filed this action in federal district court on May

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30, 2014, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

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II.

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ISSUE PRESENTED
On appeal, plaintiff raises the sole issue of whether the ALJ erred in determining that

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plaintiff could perform his past relevant work at step four.2

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In its opposition brief, the Commissioner devotes several pages to a discussion of whether the
ALJ properly evaluated plaintiff’s credibility. (ECF No. 17.) However, in plaintiff’s reply brief,
plaintiff confirms that he does not contest the ALJ’s findings as to plaintiff’s credibility. (ECF
No. 18 at 5.) As such, the court need not address plaintiff’s credibility.
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III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

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proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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A.

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The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

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five-step analytical framework.3 As an initial matter, the ALJ found that plaintiff remained

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Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past relevant work? If so, the
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insured for purposes of DIB through December 31, 2015. (AT 15.) At the first step, the ALJ

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concluded that plaintiff had not engaged in substantial gainful activity since April 17, 2011,

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plaintiff’s alleged disability onset date. (Id.) At step two, the ALJ determined that plaintiff had

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the following severe impairments: diabetes mellitus and diabetic peripheral neuropathy. (Id.)

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However, at step three, the ALJ determined that plaintiff did not have an impairment or

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combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part

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404, Subpart P, Appendix 1. (Id.)
Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity

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(“RFC”) as follows:

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After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except
no heights, no climbing ladders, ropes, and scaffolds and []he must
elevate [his] feet when sitting.

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(AT 16-20.)

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At step four, the ALJ found that plaintiff was able to perform his past relevant work as a

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tax preparer and general office clerk, because that work did not require the performance of work-

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related activities precluded by plaintiff’s RFC.4 (AT 20.) Therefore, the ALJ concluded that

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plaintiff had not been under a disability, as defined in the Act, from April 17, 2011, plaintiff’s

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alleged disability onset date, through February 7, 2013, the date of the ALJ’s decision. (AT 20-

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21.)

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claimant is not disabled. If not, proceed to step five.

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Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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In light of the ALJ’s finding at step four, the ALJ was not required to proceed to step five.
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Plaintiff’s Substantive Challenge to the Commissioner’s Determinations

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B.

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As noted above, plaintiff contends that the ALJ erred in determining that plaintiff could

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perform his past relevant work at step four, particularly in light of the requirement in the RFC that

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plaintiff must elevate his feet when sitting.

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Generally, the burden falls on plaintiff to show at step four that he was unable to return to

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his past work either as actually or generally performed in the national economy. Tackett, 180

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F.3d at 1098; see also Bowen, 482 U.S. at 146 n.5. However, the Ninth Circuit has observed that

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“the application of burdens of proof is particularly elusive in cases involving social security

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benefits, in part because the proceedings are not designed to be adversarial.” Tackett, 180 F.3d at

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1098 n.3. Moreover, “the ALJ’s affirmative duty to assist a claimant to develop the record further

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complicates the allocation of burdens.” Id. (citing 20 C.F.R. § 404.1512(d)). As such, the Ninth

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Circuit has held that, “[a]lthough the burden of proof lies with the claimant at step four, the ALJ

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still has a duty to make the requisite factual findings to support his conclusion.” Pinto v.

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Massanari, 249 F.3d 840, 844 (9th Cir. 2001). More specifically, the ALJ’s decision at step four

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requires “specific findings as to the claimant’s residual functional capacity, the physical and

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mental demands of the past relevant work, and the relation of the residual functional capacity to

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the past work.” Pinto, 249 F.3d at 845 (citing SSR 82-62).
In this case, the ALJ’s analysis at step four was limited to the following:

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In comparing the claimant’s residual functional capacity with the
physical and mental demands of [work as a tax preparer and general
office clerk], the undersigned finds that the claimant is able to
perform it as actually and generally performed. The additional
limitation of elevating his legs would only erode the occupational
base, but it should not preclude the claimant from doing his past
relevant work as a tax preparer.5

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(AT 20.) Such conclusory and speculative analysis is insufficient to support the ALJ’s step four

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finding in this case. The ALJ cited no record evidence, provision of the Dictionary of

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Occupational Titles, and/or vocational expert testimony to support his determination that plaintiff

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In the bolded portion of the step four finding, the ALJ suggests that plaintiff is capable of
performing his past relevant work as a tax preparer and as a general office clerk. (AT 20.)
However, that apparent inconsistency is not material to the court’s analysis here and can be
resolved on remand.
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could perform his past relevant work, either as actually performed or as generally performed.

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Indeed, the ALJ provided no rationale for concluding that the occupational base of plaintiff’s past

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relevant work would be eroded by the need to elevate his legs while sitting, but not to a sufficient

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degree to effectively preclude the performance of such work.

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Furthermore, under the circumstances here, the court cannot find that the ALJ’s error was

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harmless. Although specific findings are generally required, the step four determination in some

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cases may be relatively straightforward, and thus not require extensive reasoning. For example, if

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the degree of leg elevation required were de minimis, it would be obvious that the occupational

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base of plaintiff’s past sedentary jobs would not be substantially eroded, if at all. However, in

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this case, the ALJ made no findings regarding the degree of leg elevation required, nor did the

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ALJ obtain vocational expert testimony concerning the impact of such a limitation on plaintiff’s

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past work.6 The Commissioner posits that plaintiff should be able to perform past relevant work

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with the assistance of certain furniture or devices readily available on the market. That argument

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certainly has logical appeal, and the Commissioner may well be correct, but without, at a

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minimum, any findings regarding the degree of leg elevation required, the court cannot

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independently make such a determination. Accordingly, the court concludes that the case should

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be remanded for further administrative proceedings.

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On remand, the ALJ shall make appropriate findings regarding the degree of leg elevation

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required. In the event that the current record does not permit the ALJ to make such findings, the

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ALJ shall appropriately develop the record in that regard. If the degree of leg elevation required

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is found to be de minimis, that may well conclude the matter. However, if the degree of leg

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elevation required is found to be more substantial, the ALJ should strongly consider obtaining

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vocational expert testimony regarding the potential impact of such a limitation on plaintiff’s

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ability to perform past relevant work, either as actually performed or as generally performed in

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the national economy, including the extent to which assistive devices or furniture may permit

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The ALJ did not question the VE who was present at the hearing. (AT 34-56.)

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plaintiff to nonetheless perform his past relevant work.7

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The ALJ is also free to develop the record in other respects, such as by proceeding to step

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five, or making an alternative step five finding, if deemed appropriate. Importantly, the court

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expresses no opinion regarding the ultimate question of plaintiff’s disability under the Act.

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V.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 14) is GRANTED.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 17) is DENIED.

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3. The action is remanded for further proceedings consistent with this order pursuant to

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sentence four of 42 U.S.C. § 405(g).

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4. Judgment is entered for plaintiff.

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5. The Clerk of Court shall close this case.

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IT IS SO ORDERED.

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Dated: June 8, 2015

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The court does not mandate the use of a vocational expert, because the necessity of a vocational
expert would depend on the ALJ’s findings on remand. The court leaves it to the ALJ to decide,
in the first instance, how to satisfy his obligations at step four within the confines of applicable
law.
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