French v. Commissioner of Social Security

Filing 14

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/22/16 ORDERING that Plaintiff's motion for summary judgment is GRANTED; The Commissioner's cross-motion for summary judgment is DENIED; the matter is REMANDED for further proceedings consistent with this order; and the Clerk is directed to enter judgment in the plaintiff's favor. CASE CLOSED. (Becknal, R)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

SABRINA LYNN FRENCH,

11

Plaintiff,

12
13
14

No. 2:15-cv-743-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

15
16

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

17
18

(“Commissioner”) denying her application for a period of disability and Disability Insurance

19

Benefits (“DIB”) under Titles II the Social Security Act. The parties have filed cross-motions for

20

summary judgment. For the reasons discussed below, plaintiff’s motion for summary judgment is

21

granted, the Commissioner’s motion is denied, and the matter is remanded for further

22

proceedings.

23

I.

BACKGROUND

24

Plaintiff filed an application for a period of disability and DIB, alleging that she had been

25

disabled since January 12, 2013. Administrative Record (“AR”) 190-199. Plaintiff’s application

26

was denied initially and upon reconsideration. Id. at 123-126, 133-137. On December 2, 2014, a

27

hearing was held before administrative law judge (“ALJ”) Odell Grooms. Id. at 21-99. Plaintiff

28

was represented by counsel at the hearing, at which she and a vocational expert testified. Id.
1

1

On December 24, 2014, the ALJ issued a decision finding that plaintiff was not disabled

2

under sections 216(i) and 223(d) of the Act.1 Id. at 10-17. The ALJ made the following specific

3

findings:

4
5
6

1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since January 12, 2013, the
alleged onset date (20 CFR 404.1571 et seq.).

7
8
9

***
3. The claimant has the following severe impairments: lumbar/sacral facet arthropathy and
lumbarized S1 (20 CFR 404.1520(c)).

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1

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 (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, 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 five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (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
work? If so, the claimant is not disabled. If not, proceed to step
five.
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.

26

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

27

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
2

28

1

***

2

4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).

3
4

***

5

5. After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the
claimant can frequently climb ramps and/or stairs, can occasionally climb ladders, ropes
and/or scaffolds, can frequently stoop, kneel, crouch and/crawl.

6
7
8

***

9

6. The claimant is capable of performing past relevant work as a sales clerk and waitperson.
This work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).

10
11

***

12
7. The claimant has not been under a disability, as defined in the Social Security Act, from
January 12, 2013, through the date of this decision (20 CFR 404.1520(f)).

13
14

Id. at 12-17.
Plaintiff’s request for Appeals Council review was denied on January 30, 2015, leaving

15
16

the ALJ’s decision as the final decision of the Commissioner. Id. at 1-4.

17

II.

18

LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

19

of fact are supported by substantial evidence in the record and the proper legal standards were

20

applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

21

Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

22

180 F.3d 1094, 1097 (9th Cir. 1999).

23

The findings of the Commissioner as to any fact, if supported by substantial evidence, are

24

conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

25

more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

26

Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

27

conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

28

N.L.R.B., 305 U.S. 197, 229 (1938)).
3

1

“The ALJ is responsible for determining credibility, resolving conflicts in medical

2

testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

3

2001) (citations omitted). “Where the evidence is susceptible to more than one rational

4

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

5

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

6

III.

7

ANALYSIS
Plaintiff argues that the ALJ erred by (1) failing to consider a VA disability determination

8

finding her 60 percent disabled; (2) failing to find that her ankle strain, knee strain, and carpal

9

tunnel syndrome were severe impairments at step-two; and (3) discrediting her testimony without

10

providing legally sufficient reasons. ECF No. 12 at 15-30.

11

Plaintiff first contends that the ALJ failed to consider a VA disability determination

12

assessing her RFC. Id. at 15-18. An ALJ is required to consider a VA rating. McCartey v.

13

Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). “While a VA disability decision does not

14

necessarily compel the SSA to reach an identical result, the ALJ must consider the VA’s finding

15

in reaching his decision, because of the similarities between the VA disability program and the

16

Social Security disability program.” Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012).

17

“However, [b]ecause the standards for evaluating disability under the two programs is not

18

identical, . . . the ALJ may give less weight to a VA disability rating if he gives persuasive,

19

specific, valid reasons for doing so that are supported by the record.” McCartey, 298 F.3d at

20

1075; see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009).

21

The VA issued a decision finding that plaintiff was 60 percent disabled as of September 7,

22

2012, due to lumbar degenerative joint and disc disease with intervertebral disc syndrome and

23

radiculopathy, bilateral knee strain with shin splints and tibial stress fractures, and bilateral

24

chronic ankle strain with stress fractures. AR 296-299.

25

The ALJ’s decision does not even reference the VA’s disability determination; much less

26

provide a “persuasive, specific, valid reasons” for not according it great weight. The

27

Commissioner concedes this point, but argues that any error in failing to address the VA’s

28

disability rating was harmless because the ALJ “was clearly aware of Plaintiff’s treatment at the
4

1

VA and provided legally valid bases for finding Plaintiff not disabled . . . .” ECF No. 13 at 23;

2

see Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1071 (9th Cir. 2010) (“We must uphold an

3

ALJ’s decision so long as it is supported by substantial evidence and not based on legal error.

4

Further, even if the ALJ erred, we will uphold the decision so long as the error was harmless.”)

5

(citation omitted). In advancing this argument, the Commissioner cites to various portions of the

6

record that purportedly support the ALJ’s RFC determination. Id. at 23-24.

7

The problem with this argument is that the ALJ made no reference to the VA’s disability

8

rating, let alone relied on any of the evidence cited by the Commissioner as a basis for according

9

it reduced weight. This court’s review is limited to the rationale provided by the ALJ. See Bray

10

v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles

11

of administrative law require [the court] to review the ALJ’s decision based on the reasoning and

12

factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the

13

adjudicator may have been thinking.”); Ceguerra v. Sec’y of Health & Human Servs., 933 F.2d

14

735, 738 (9th Cir. 1991) (“A reviewing court can evaluate an agency’s decision only on the

15

grounds articulated by the agency.”). The ALJ’s decision simply ignores the evidence and,

16

accordingly, the Commissioner’s post-hoc rationalization cannot excuse the ALJ’s failure to

17

explain why this evidence was rejected.

18

Furthermore, the VA determination included additional impairments that were not

19

discussed by the ALJ. The VA determined that plaintiff was 60 percent disabled due in part to

20

bilateral knee strain with shin splints and tibial stress fractures, and bilateral chronic ankle strain

21

with stress fractures. AR 298-299. VA records also indicate that these impairments precluded

22

plaintiff from sitting, standing, and walking for extended periods of time/distance, limitations at

23

odds with the ALJ’s RFC determination. Id. at 553. The ALJ’s decision provides no explanation

24

for why the impairments to plaintiff’s knees and ankles did not impact her ability to perform

25

substantial gainful activity. Indeed, the ALJ’s RFC determination focused almost exclusively on

26

medical records concerning plaintiff’s back impairments, with virtually no discussion of medical

27

records concerning other impairments.

28

/////
5

1

Accordingly, the court cannot find that the ALJ’s failure to address VA disability

2

determination was harmless. The matter must therefore be remanded to the Commissioner for

3

consideration of this evidence.2

4

IV.

CONCLUSION

5

Accordingly, it is hereby ORDERED that:

6

1. Plaintiff’s motion for summary judgment is granted;

7

2. The Commissioner’s cross-motion for summary judgment is denied;

8

3. The matter is remanded for further proceedings consistent with this order; and

9

4. The Clerk is directed to enter judgment in the plaintiff’s favor.

10

DATED: September 22, 2016.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

Because remand is necessary for further consideration of the evidence of record, the
court declines to address plaintiff’s additional arguments.
6