Oscar C. Vallejo v. Carolyn W. Colvin, No. 5:2015cv00499 - Document 21 (C.D. Cal. 2015)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision.(See document for further details). (mr)
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Oscar C. Vallejo v. Carolyn W. Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OSCAR C. VALLEJO, 12 13 14 15 Case No. EDCV 15-0499 SS Plaintiff, v. MEMORANDUM DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 16 Defendant. 17 18 19 I. 20 INTRODUCTION 21 22 Oscar C. Vallejo (“Plaintiff”) seeks review of the final 23 decision of 24 Administration (the “Commissioner” or the “Agency”) denying his 25 application 26 parties 27 jurisdiction of the undersigned United States Magistrate Judge. 28 For the reasons stated below, the decision of the Commissioner is for the Commissioner Supplemental consented, pursuant of Security to 28 the Social Income U.S.C. § Security (“SSI”). 636(c), The to the Dockets.Justia.com 1 REVERSED 2 consistent with this decision. and REMANDED for further administrative proceedings 3 4 II. 5 PROCEDURAL HISTORY 6 7 On October 27, 2011, Plaintiff filed an application for SSI, 8 claiming 9 (Administrative that he became Record disabled (“AR”) on 79-88; January see also 21, AR 1991. 31-32). 10 Plaintiff 11 retardation, severe neck pain, severe left shoulder pain, severe 12 upper 13 diverticulosis, and dysthymia. 14 Plaintiff’s 15 reconsideration on November 29, 2012. back based pain, his alleged severe application lower on disability back pain, 24, 2012 psychomotor severe (AR 103). May on head pains, The Agency denied (AR 38-42) and upon (AR 43-37). 16 17 Plaintiff requested a hearing, which was held before 18 Administrative Law Judge (“ALJ”) Jay E. Levine on February 5, 19 2014. 20 testified. (AR 299-302). 21 unfavorable decision. 22 before the Appeals Council (AR 9), which the Council denied on 23 January 26, 2015. 24 the final decision of the Commissioner. 25 instant action on March 16, 2015. 26 \\ 27 \\ (AR 285-303). Vocational expert (“VE”) Joseph Torres also (AR (AR 5-7). On July 29, 2014, the ALJ issued an 14-23). Plaintiff sought review The ALJ’s determination thus became 28 2 Plaintiff filed the 1 III. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate 6 impairment that prevents him from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d a 715, medically 721 determinable (9th Cir. 1998) physical or mental Reddick v. Chater, (citing 42 U.S.C. 10 § 423(d)(1)(A)). 11 incapable 12 incapable of performing any other substantial gainful employment 13 that exists in the national economy. 14 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). of The performing impairment the work must he render previously the claimant performed and Tackett v. Apfel, 180 F.3d 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 20 C.F.R. §§ 404.1520, 416.920. The steps are: 19 20 (1) Is the claimant presently engaged in substantial 21 gainful activity? 22 not disabled. 23 (2) If so, the claimant is found If not, proceed to step two. Is the claimant’s impairment severe? 24 claimant is found not disabled. 25 If not, the to step three. 26 27 (3) If so, proceed Does the claimant’s impairment meet or equal one of the specific impairments 28 3 described in 20 1 C.F.R. Part 404, Subpart P, Appendix 1? 2 the claimant is found disabled. 3 to step four. 4 (4) If so, If not, proceed Is the claimant capable of performing his past 5 work? 6 If not, proceed to step five. 7 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 8 not, the claimant is found disabled. 9 If claimant is found not disabled. If so, the 10 11 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 12 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 13 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 14 15 The claimant has the burden of proof at steps one through 16 four, and the Commissioner has the burden of proof at step five. 17 Bustamante, 262 F.3d at 953-54. 18 affirmative duty to assist the claimant in developing the record 19 at every step of the inquiry. 20 claimant meets his burden of establishing an inability to perform 21 past 22 perform some other work that exists in “significant numbers” in 23 the national economy, taking into account the claimant’s residual 24 functional capacity (“RFC”), age, education, and work experience. 25 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 26 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 27 so by the testimony of a VE or by reference to the Medical- work, the Commissioner Additionally, the ALJ has an Id. at 954. must 28 4 show If, at step four, the that the claimant can The Commissioner may do 1 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 2 Appendix 2 (commonly known as “the Grids”). 3 240 F.3d 1157, 1162 (9th Cir. 2001). 4 exertional (strength-related) and non-exertional limitations, the 5 Grids are inapplicable and the ALJ must take VE testimony. 6 v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 7 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Osenbrock v. Apfel, When a claimant has both Moore 8 IV. 9 THE ALJ’S DECISION 10 11 12 The 13 process. 14 engaged in substantial gainful employment since October 27, 2011, 15 the application date. 16 Plaintiff had the severe impairments of lumbosacral myofascial 17 strain and depression not otherwise specified with lower average 18 intellectual ability. ALJ employed the five-step sequential evaluation At step one, the ALJ found that Plaintiff had not (AR 16). At step two, the ALJ found that (Id.). 19 20 At step three, the ALJ found that Plaintiff did not have an 21 impairment or combination of impairments that met or medically 22 equaled the severity of an impairment listed in 20 C.F.R. Part 23 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 24 404.926). 25 RFC to “to perform medium work as defined in 20 CFR 416.967(c) 26 except [Plaintiff] is limited to frequently climb[ing] ramps and 27 stairs, but he can occasionally stoop and bend; [and] he can (AR 16-17). The ALJ then found that Plaintiff had the 28 5 1 occasionally lift 2 extremity.” (Id.). above the shoulder level with either upper 3 4 At step four, the ALJ found that Plaintiff has no past 5 relevant work. 6 considering Plaintiff's age, education, work experience and RFC, 7 he could perform jobs that exist in significant numbers in the 8 national economy. 9 concluded that (AR 22). (Id.). Plaintiff At step five, the ALJ found that, Based on the VE’s testimony, the ALJ could perform the requirements of 10 laundry worker, hand packager, and dining room attendant. (AR 11 22-23). Accordingly, not 12 disabled. (AR 23). the ALJ found that Plaintiff was 13 14 V. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. The court may set the 19 decision aside when the ALJ’s findings are based on legal error 20 or are not supported by substantial evidence in the record as a 21 whole. 22 (citing Tackett, 180 F.3d at 1097). 23 more than a scintilla, but less than a preponderance.” 24 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 25 (9th Cir. 1997)). 26 person might accept as adequate to support a conclusion.” Id. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) “Substantial evidence is Reddick, It is “relevant evidence which a reasonable 27 28 6 1 (citing Jamerson, 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 2 1273, 1279 (9th Cir. 1997)). 3 4 To determine the whether court weighing both evidence that supports and evidence that detracts 7 from the [Commissioner’s] conclusion.’” 8 1035 9 1993)). Sullivan, 2 record as a a 6 v. the supports finding, Penny “‘consider evidence 5 (quoting must substantial whole, Aukland, 257 F.3d at F.3d 953, 956 (9th Cir. If the evidence can reasonably support either affirming 10 or reversing that conclusion, the court may not substitute its 11 judgment for the Commissioner’s. 12 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720-21 13 14 VI. 15 DISCUSSION 16 17 A. Plaintiff’s Hearing Loss Is A Severe Impairment 18 19 Among to Plaintiff’s consider contentions perform the occupations of laundry worker, hand packager, and 23 dining room attendant was error. 24 Support of Complaint (the “MSC”), Dkt. No. 18, at 9-12). 25 Court agrees in this respect. 26 27 28 7 that a in 22 testimony was erred impairment, VE’s loss ALJ 21 the hearing the failing thus his that 20 and that is severe Plaintiff could ((Plaintiff’s Memorandum in The 1 By its own terms, the evaluation at step two is a de minimis 2 test intended to weed out the most minor of impairments. 3 Bowen 4 Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting Smolen, 5 80 F.3d at 1290) (stating that the step two inquiry is a de 6 minimis screening device to dispose of groundless claims). 7 impairment is not severe only if the evidence establishes “a 8 slight abnormality that has no more than a minimal effect on an 9 individual[’s] v. Yuckert, 482 ability U.S. to 137, work.” 153-54 (1987); Smolen, 80 Edlund F.3d at See v. An 1290 10 (internal 11 discussed Plaintiff’s audiological evaluation in his decision (AR 12 20), 13 constituted a severe impairment; nor did the ALJ include any 14 limitations in the RFC due to hearing loss. 15 the ALJ’s failure to do so was error because substantial evidence 16 existed in the record to demonstrate that Plaintiff’s hearing 17 loss was severe. he quotations did not marks omitted). discuss whether Here, although Plaintiff’s the hearing ALJ loss The Court finds that 18 19 A January 15, 2014 audiological evaluation revealed that 20 Plaintiff had “[t]innitus [in] both ears for several years with 21 hearing 22 sensorineural loss.” 23 referred 24 (Id.). 25 demonstrate that Plaintiff's hearing was impaired. 26 § 416.927(a)(2) (“Medical opinions . . . that reflect judgments 27 about the nature and severity of [a plaintiff's] impairment(s), loss” to and “IEHP an audiometry (AR 261-62). hearing aid testing showed “[m]ild As a result, Plaintiff was dispenser for hearing aids.” These records constitute significant medical evidence to 28 8 20 C.F.R. 1 including symptoms, diagnosis and prognosis,” are evidence that a 2 plaintiff 3 Accordingly, the ALJ applied more than a de minimis test at step 4 two 5 cannot be considered harmless as it impacted the remainder of the 6 five-step process. may submit concerning in support Plaintiff’s of hearing his disability impairment and claim). the error 7 8 Upon remand, the ALJ must reevaluate Plaintiff’s RFC with 9 the finding that Plaintiff's hearing loss is a severe impairment, 10 in which case additional testimony from a VE will be needed to 11 determine what work, if any, Plaintiff can perform. 12 13 14 B. The ALJ Failed To Identify The Specific Testimony He Found Not Credible 15 16 In order to reject Plaintiff’s subjective testimony, the ALJ 17 must make specific findings stating clear and convincing reasons 18 for rejecting the testimony. 19 “must identify what testimony is not credible and what evidence 20 undermines the claimant’s complaints.” 21 821, 834 (9th Cir. 1996). Smolen, 80 F.3d at 1281. The ALJ Lester v. Chater, 81 F.3d 22 23 The ALJ summarized Plaintiff’s subjective testimony and 24 other statements by Plaintiff in the record. 25 summarized the medical evidence. 26 briefly notes Plaintiff’s general pain testimony (AR 19), he does 27 not identify specifically which allegations of disabling symptoms 28 9 (Id.). (AR 18). He then However, while the ALJ 1 he finds not credible and what evidence specifically undermines 2 those complaints. 3 identify the testimony that the ALJ finds not credible and the 4 evidence that undermines that particular testimony. On remand, the ALJ shall more specifically 5 6 VII. 7 CONCLUSION 8 9 Accordingly, IT IS ORDERED that judgment be entered 10 REVERSING the decision of the Commissioner and REMANDING this 11 matter for further proceedings consistent with this decision. 12 IS FURTHER ORDERED that the Clerk of the Court serve copies of 13 this Order and the Judgment on counsel for both parties. IT 14 15 DATED: December 30, 2015 16 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 NOTICE 21 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 22 23 24 25 26 27 28 10
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