Paul Trevor Cornelius v. Nancy A. Berryhill, No. 2:2017cv08990 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Paul Trevor Cornelius v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 14 15 16 17 18 PAUL TREVOR CORNELIUS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 17-08990-AS MEMORANDUM OPINION 19 20 PROCEEDINGS 21 22 On December 14, 2017, Plaintiff filed a Complaint seeking review of 23 the denial of his applications for Supplemental Security Income and 24 Disability Insurance Benefits. (Docket Entry No. 1). The parties have 25 consented to proceed before the undersigned United States Magistrate 26 Judge. (Docket Entry Nos. 11-12). On May 10, 2018, Defendant filed an 27 Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 28 15-16). On October 31, 2018, the parties filed a Joint Stipulation Dockets.Justia.com 1 (“Joint Stip.”) setting forth their respective positions regarding 2 Plaintiff’s claim. (Docket Entry No. 21). 3 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On September 8, 2014, Plaintiff, formerly employed as a cashier, 10 short order cook, construction cleaner and painter (see AR 39-44, 209, 11 214-15), filed applications for Supplemental Security Income and 12 Disability Insurance Benefits, alleging an inability to work because of 13 a disabling condition since February 1, 2014. (See AR 14, 159-73). 14 January 22, 2016, the Administrative Law Judge (“ALJ”), On Robin 15 Rosenbluth, heard testimony from Plaintiff (represented by counsel) and 16 vocational expert Aida Worthington. (See AR 36-76). On July 18, 2016, 17 the ALJ issued a decision denying Plaintiff’s application. (See AR 1418 22). After determining that Plaintiff had severe impairments –- 19 neuropathy and alcohol abuse (AR 16)1 --, but did not have an impairment 20 or combination of impairments that met or medically equaled the severity 21 of one of the listed impairments (AR 17), the ALJ found that Plaintiff 22 had the residual functional capacity (“RFC”)2 to perform sedentary work3 23 1 The ALJ found that Plaintiff’s mental impairment of mood 24 disorder was non-severe. (AR 16-17). 2 25 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 26 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 27 28 3 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is (continued...) 2 1 with the following limitations: can carry and lift 10 pounds 2 occasionally; can sit 6 hours; can stand/walk 2 hours in an 8-hour 3 workday; needs a cane for balance; canot operate foot controls 4 occasionally; cannot be around unprotected heights; can climb ladders, 5 ropes, scaffolds, stairs and ramps occasionally. (AR 18-20). The ALJ 6 then determined that Plaintiff was not able to perform any past relevant 7 work (AR 20-21), but that Plaintiff could perform the jobs existing in 8 significant numbers in the national economy and was therefore not 9 disabled within the meaning of the Social Security Act. (AR 21-22). 10 11 Plaintiff requested that the Appeals Council review the ALJ’s 12 Decision. (See AR 157). The request was denied on November 7, 2017. 13 (See AR 1-6). Plaintiff now seeks judicial review of the ALJ’s Decision 14 which stands as the final decision of the Commissioner. See 42 U.S.C. 15 §§ 405(g), 1383(c). 16 17 STANDARD OF REVIEW 18 19 This Court reviews the Administration’s decision to determine if 20 it is free of legal error and supported by substantial evidence. 21 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). See “Substantial 22 evidence” is more than a mere scintilla, but less than a preponderance. 23 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 24 whether substantial evidence supports a finding, “a court must consider 25 the record as a whole, weighing both evidence that supports and evidence 26 27 28 3 (...continued) often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 3 1 that detracts from the [Commissioner’s] conclusion.” Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 3 omitted). As a result, “[i]f the evidence can support either affirming 4 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 5 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 6 880, 882 (9th Cir. 2006).4 7 8 PLAINTIFF’S CONTENTION 9 10 Plaintiff alleges that the ALJ erred in finding that Plaintiff’s 11 neuropathy impairment did not meet Listing 11.14A. (See Joint Stip. at 12 4-8, 21-22). 13 14 DISCUSSION 15 16 After consideration of the record as a whole, the Court finds that 17 the Commissioner’s findings are supported by substantial evidence and 18 are free from legal error. 19 20 // 21 // 22 // 23 24 25 26 4 The harmless error rule applies to the review of See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 27 administrative decisions regarding disability. 28 4 1 DISCUSSION 2 3 A. The ALJ Did Not Err in Finding that Plaintiff’s Impairment Did Not 4 Meet Or Equal Listing 11.14A 5 6 Plaintiff asserts that the ALJ erred in finding that Plaintiff’s 7 impairment did not meet Listing 11.14A. Plaintiff claims that the ALJ 8 “fail[ed] to adequately consider the deterioration of [Plaintiff’s] 9 neuropathy and inability to effectively ambulate without a walker 10 beginning in August 2015.” (See Joint Stip. at 4-8, 21-22). Defendant 11 asserts that the ALJ properly found that Plaintiff’s impairment did not 12 meet Listing 11.14A and further asserts that the ALJ could not find 13 Plaintiff disabled because Plaintiff’s alcohol abuse is the primary 14 cause of his neuropathy and other limitations. (See Joint Stip. at 915 20).5 16 17 If a claimant suffers a severe impairment, the ALJ is required to 18 decide whether the impairment meets or equals one of the listed 19 impairments. See 20 C.F.R. §§ 404.1520(d), 416.920(d); Young v. 20 Sullivan, 911 F.2d 180, 181 (9th Cir. 1990); Marcia v. Sullivan, 900 21 F.2d 172, 174-75 (9th Cir. 1990). Disability is presumed if a 22 claimant's impairment or combination of impairments meets or is 23 medically equivalent to one of the listed impairments. Id.; 20 C.F.R. 24 25 26 27 28 5 The Court need not address Defendant’s argument that Plaintiff’s alcohol abuse precluded a finding of disability (see Joint Stip. at 9-16). As Plaintiff points out (see Joint Stip. at 21), a finding of disability would be precluded only if the ALJ had conducted a drug abuse and alcoholism analysis to determine which of Plaintiff’s limitations would remain if Plaintiff stopped using drugs or alcohol. See Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007); 20 C.F.R. §§ 404.1535, 416.935. 5 1 §§ 404.1520(d), 416.920(d); Bowen v. Yuckert, 482 U.S. 137, 141-42 2 (1987). An impairment meets a listed impairment if a claimant has “a 3 medically determinable impairment(s) that satisfies all of the criteria 4 of the listing.” 20 C.F.R. §§ 404.1525(d), 416.925(d); see also 5 Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “An impairment that 6 manifests only some of those criteria, no matter how severely, does not 7 qualify.” Id.. The criteria of a listed impairment cannot be met 8 solely based on a diagnosis. 20 C.F.R. §§ 404.1525(d), 416.925(d); see 9 also Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). An 10 impairment is “medically equivalent to a listed impairment . . . if it 11 is at least equal in severity and duration to the criteria of any listed 12 impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a). If an impairment 13 is not described in the listed impairments, or if the combination of 14 impairments does not meet one of the listed impairments, the 15 determination of medical equivalence is based on a comparison of 16 findings (concerning a claimant) “with those for closely analogous 17 listed impairments.” 20 C.F.R. §§ 404.1526(b)(2), (3), 416.926(b)(2), 18 (3). The decision is based on “all evidence in [a claimant’s] record 19 about [his or her] impairment(s) and its effect on [a claimant] that is 20 relevant to this finding” and on designated medical or psychological 21 consultants. 22 23 20 C.F.R. §§ 404.1526(c), 416.926(c). A claimant can meet Listing 11.14 if he has peripheral neuropathy, 24 characterized by “A. Disorganization of motor function in two 25 extremities (see 11.00D1), resulting in an extreme limitation (see 26 11.00D2) in the ability to stand up from a seated position, balance 27 28 6 1 while standing or walking, or use the upper extremities[.]” 20 C.F.R. 2 Pt. 404, Subpt. P, App. 1, § 11.14.6 3 4 Listing 1100D1 describes “disorganization of motor function” as: 5 6 interference, 7 movement of two extremes; i.e., the lower extremities, or 8 upper extremities (including fingers, wrists, hands, arms and 9 shoulders)). 10 extremities, 11 extremity and one lower extremity. 12 system, except for 11.02 (Epilepsty), 11.10 (Amyotrophic 13 lateral sclerosis), and 11.20 (Coma and persistent vegetative 14 state), 15 function that results 16 ability to: due By or include to two both your neurological extremities upper criteria in for an we disorder, mean extremities, or with both lower one upper All listings in this body disorganization or motor extreme limitation in your 17 a. Stand up from a seated position; or 18 b. Balance while standing or walking; or 19 c. Use the upper extremities (including fingers, hands, 20 arms, and shoulders). 21 22 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00D1. 23 24 25 26 27 28 6 As Defendant points out (see Joint Stip. at 18 n.1), the version of Listing 11.14 in effect at the time of the ALJ’s decision required peripheral neuropathies and “disorganization of motor function as described in 11.04(B), in spite of prescribed treatment.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.14 (2016); McCloskey v. Colvin, 2016 WL 5745077, *7 (C.D. Cal. Sept. 29, 2016). However, since the newer version of Listing 11.14 went into effect on September 29, 2016, see 81 Fed. Reg. 43048-01, 2016 WL 3551949, which was prior to the Appeals Council’s denial of Plaintiff’s Request for Review, the Court will examine the newer version of Listing 11.14. 7 1 Listing 11.00D2 describes “extreme limitation,” in pertinent part, 2 as: 3 4 the inability to stand up from a seated position, maintain 5 balance in a standing position and while walking, or use your 6 upper extremities to independently initiate, sustain, and 7 complete work-related activities. 8 function depends on the degree of interference with standing 9 up; balancing while standing or walking; or using the upper 10 extremities (including fingers, hands, arms, and shoulders). 11 a. The assessment of motor Inability to stand up from a seated position means 12 that once seated you are unable to stand and maintain an 13 upright position without the assistance of another person or 14 the use of an assistive device, such as a walker, two 15 crutches, or two canes. 16 b. Inability to maintain balance in a standing position 17 means that you are unable to maintain an upright position 18 while standing or walking without the assistance of another 19 person or an assistive dvice, such as a walker, two crutches, 20 or two canes. 21 22 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00D2. 23 24 In finding that Plaintiff's impairment or combination of 25 impairments did not meet or equal a listing, the ALJ stated, “With 26 regards to listing 11.14 for peripheral neuropathies, the record fails 27 to demonstrate any significant and persistent disorganization of motor 28 8 1 function in two extremities that have resulted in sustained disturbance 2 of gross and dexterous movements or gait and station.” (AR 17). 3 4 Although Plaintiff has cited to evidence of possible neuropathy of 5 both his feet prior to August 2015 (see Joint Stip. at 7, citing AR 312, 6 449, 590, 737), the evidence (see Joint Stip. at 7-8, citing AR 595-97, 7 624-35, 800-03) fails to show that beginning in August 2015 Plaintiff 8 had a “[d]isorganization of motor function in two extremities . . . 9 resulting in an extreme limitation . . . in the ability to stand up from 10 a seated position, [or] balance while standing or walking[.]” See 20 11 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.14. 12 13 While on August 24, 2015, a doctor ordered Plaintiff a walker with 14 a seat apparently based on an unsteady gate (see AR 596), there is no 15 indication that the walker was ordered because of problems of motor 16 function in Plaintiff’s two lower extremities which were caused by foot 17 neuropathy. (See AR 596 [“Neuropathy of both feet (HCC)-likely alcohol 18 related neuropathy.”]; AR 597 [“Neurology referral for consultation and 19 EMG/NCS of bilateral lower extremities.”]). Moreover, neither the 20 December medicine 9, 2015 report of the internal consultative 21 examination nor the January 14, 2016 Progress Note demonstrates problems 22 of motor function in Plaintiff’s two lower extremities which were caused 23 by foot neuropathy or an extreme limitation in Plaintiff’s ability to 24 stand up from a seated position or to balance while standing or walking. 25 (See AR 628 [Consultative examination: “The claimant uses a walker to 26 ambulate. He has stiff gate. He was able to walk approximately 5 feet. 27 He was complaining of pain and therefore refused to walk further.”; 28 “Based on the examination, I do not find evidence of neuropathy.”]; and 9 1 AR 800-03 [Progress Note: 2 symptoms of numbness, 3 hypersensitivity. . . “Neuropathy and foot pain - He describes burning, lancinating pain, tingling and Symptoms are worse in the lower extremities.”; 4 “Neurological: positive for paresthesia.”; “[N]ormal gait and balance.”; 5 TORADOL injection given for pain in both feet.]. 6 7 Plaintiff has failed to meet his burden of showing that he has met 8 each criteria for Listing 11.14A. See Sullivan, supra, 493 U.S. at 5309 31; Burch, supra, 400 F.3d at 682-83; Tacket v. Apfel, 180 F.3d 1094, 10 1098 (9th Cir. 1999)(“The burden of proof is on the claimant as to 11 steps one to four.”). Contrary to Plaintiff’s contention, the ALJ 12 properly found that Plaintiff’s impairments did not meet Listing 11.14A. 13 14 ORDER 15 16 For the foregoing reasons, the decision of the Commissioner is 17 AFFIRMED. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 DATED: November 29, 2018 22 23 24 25 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 26 27 28 10
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