James Bonilla v. Andrew Saul

• Court: District Court, C.D. California
• Decided: July 30, 2020
• Docket: 2:19-cv-07503
• Status: Unknown

Opinion

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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 J.B., Case No. 2:19-cv-07503-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of 15 Social Security, 16 Defendant. 17 18 Plaintiff J.B.1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying his application for disability insurance 21 benefits (“DIB”) and supplemental security income (“SSI”), under Titles II and 22 XVI of the Social Security Act (the “Act”). This Court has jurisdiction under 42 23 U.S.C. §§ 405(g) and 1383(c)(3), and, pursuant to 28 U.S.C. § 636(c), the parties 24 have consented to the jurisdiction of the undersigned United States Magistrate 25 Judge. For the reasons stated below, the Commissioner’s decision is REVERSED 26 and this action is REMANDED for further proceedings consistent with this Order. 27 1 I. BACKGROUND 2 Plaintiff filed applications for DIB and SSI on October 26, 2015, alleging 3 disability beginning on June 12, 2015. Transcript (“Tr.”) 13.2 Following a denial 4 of benefits, Plaintiff requested a hearing before an administrative law judge 5 (“ALJ”) and, on September 21, 2018, ALJ Lesley Troope determined that Plaintiff 6 was not disabled. Tr. 13-27. Plaintiff sought review of the ALJ’s decision with the 7 Appeals Council, however, review was denied on July 1, 2019. Tr. 1-6. This appeal 8 followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 23 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26

27 2 A certified copy of the Administrative Record was filed on January 28, 2020. Electronic Case 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 8 III. DISCUSSION 9 A. Establishing Disability Under The Act 10 To establish whether a claimant is disabled under the Act, it must be shown 11 that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(a), 416.920(a). Each step is 26 potentially dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ 27 at any step in the sequence, there is no need to consider subsequent steps.” 1 the burden of proof at steps one through four, and the Commissioner carries the 2 burden of proof at step five. Tackett, 180 F.3d at 1098. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB or SSI]. If the 7 claimant is not working in a [SGA], then the claimant’s case cannot be 8 resolved at step one and the evaluation proceeds to step two. See 20 9 C.F.R. § 404.1520(b).[3] 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB or SSI]. If the 12 claimant’s impairment is severe, then the claimant’s case cannot be 13 resolved at step two and the evaluation proceeds to step three. See 20 14 C.F.R. § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB or SSI]. If the claimant’s 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. See 20 C.F.R. 21 § 404.1520(d). 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB or SSI]. If the claimant cannot do any work he or she 25 did in the past, then the claimant’s case cannot be resolved at step four 26 27 3 et seq., 1 and the evaluation proceeds to the fifth and final step. See 20 C.F.R. 2 § 404.1520(e). 3 Step 5. Is the claimant able to do any other work? If not, then 4 the claimant is “disabled” and therefore entitled to [DIB or SSI]. See 5 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, 6 then the Commissioner must establish that there are a significant 7 number of jobs in the national economy that claimant can do. There are 8 two ways for the Commissioner to meet the burden of showing that 9 there is other work in “significant numbers” in the national economy 10 that claimant can do: (1) by the testimony of a vocational expert 11 [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 12 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this 13 burden, the claimant is “not disabled” and therefore not entitled to 14 [DIB or SSI]. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the 15 Commissioner cannot meet this burden, then the claimant is 16 “disabled” and therefore entitled to [DIB or SSI]. See id. 17 Id. at 1098-99. 18 B. Summary Of ALJ’s Findings 19 The ALJ determined that “[Plaintiff] meets the insured status requirements 20 of the . . . Act through December 31, 2017.” Tr. 16. The ALJ then found at step 21 one, that “[Plaintiff] has not engaged in [SGA] since June 12, 2015, the alleged 22 onset date (20 C.F.R. 404.1571 et seq. and 416.971 et seq.).” Id. At step two, the 23 ALJ found that “[Plaintiff] has the following severe impairments: street-drug 24 induced myocardial infraction or heart attack with pacemaker implant; coronary 25 artery disease; cardiomyopathy; obesity; hypertension; seizures, epilepsy, or 26 transient ischemia; and history of respiratory failure (20 CFR 404.1520(c) and 27 416.920(c)).” Tr. 17. At step three, the ALJ found that “[Plaintiff] does not have 1 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 2 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” 3 Tr. 20. 4 In preparation for step four, the ALJ found that Plaintiff has the residual 5 functional capacity (“RFC”) to: 6 perform the reduced range of light work as defined in 20 CFR 7 404.1567(b) and 416.967(b) except: [Plaintiff] can lift and/or carry 20 8 pounds occasionally and 10 pounds frequently; he can stand and or walk 9 a combined 6 hours our of an 8-hour workday; he can sit for 6 hours out 10 of an 8-hour workday; he can never climb ladders, ropes, and scaffolds, 11 but he can frequently perform all other postural activities; he cannot 12 have concentrated exposure [to] fumes, odors, dusts, gases, poor 13 ventilation, and other pulmonary hazards; he cannot have exposure to 14 workplace hazards including open water, open flames, unprotected 15 heights, or moving machinery; he cannot engage in workplace operation 16 of motorized vehicles; and he cannot have exposure to magnetic 17 resonance imaging (MFI scan) machines, x-ray machines, or magnets. 18 Id. The ALJ then found, at step four, that “[Plaintiff] is unable to perform any past 19 relevant work (20 CFR 404.1565 and 416.965).” Tr. 25. 20 In preparation for step five, the ALJ noted that “[Plaintiff] was born on 21 August 17, 1967 and was 47 years old, which is defined as a younger individual age 22 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 23 [Plaintiff] subsequently changed age category to closely approaching advanced age 24 (20 CFR 404.1563 and 416.963).” Id. The ALJ observed that “[Plaintiff] has at 25 least a high school education and is able to communicate in English (20 CFR 26 404.1564 and 416.964).” Tr. 26. The ALJ then added that “[t]ransferability of job 27 skills is not material to the determination of disability because using the Medical- 1 whether or not [Plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR 2 Part 404, Subpat P, Appendix 2).” Id. 3 At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 4 work experience, and [RFC], there are jobs that exist in significant numbers in the 5 national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569(a), 6 416.969, and 416.969(a)).” Id. Specifically, the ALJ found that Plaintiff could 7 perform the “light, unskilled” occupations of “Product Packer,” as defined in the 8 Dictionary of Occupational Titles (“DOT”) at DOT 920.687-166, “Packing Line 9 Worker, DOT code 753.687-038,” and “Product Trimmer, DOT code 732.684- 10 046[.]” Id. The ALJ based his decision that Plaintiff could perform the 11 aforementioned occupations “on the testimony of the [VE]” from the 12 administrative hearing, after “determin[ing] that the [VE’s] testimony [wa]s 13 consistent with the information contained in the [DOT].” Tr. 27. 14 After finding that “[Plaintiff] is capable of making a successful adjustment to 15 other work that exists in significant numbers in the national economy,” the ALJ 16 concluded that “[a] finding of not disabled is . . . appropriate under the framework 17 of the above-cited rule.” Id. (internal quotation marks omitted). The ALJ, 18 therefore, found that “[Plaintiff] has not been under a disability, as defined in the 19 . . . Act, from June 12, 2015, through [September 21, 2018], the date of th[e] 20 decision (20 CFR 404.1520(g) and 416.920(g)).” Id. 21 C. Issues Presented 22 In this appeal, Plaintiff raises two issues, whether the ALJ properly 23 considered (1) “the lay witness evidence[,]” and (2) Plaintiff’s testimony. ECF 24 No. 21, Joint Stip. at 4. 25 D. Court’s Consideration Of First Issue 26 1. Parties’ Arguments 27 Plaintiff argues that the ALJ erred by failing to properly consider the lay 1 credited, . . . supports a conclusion that [Plaintiff] is incapable of performing gainful 2 employment.” Id. at 16, 18. Plaintiff argues that the ALJ’s failure to consider Ms. 3 Edwards’s opinion “is reversible error warranting remand.” Id. at 18. 4 Defendant responds that “[w]hile the ALJ did not specifically address [the] 5 lay third-party testimony of . . . [Ms.] Edwards,” this failure “still does not amount 6 to reversible harmful error” because Ms. Edwards’s opinion “is largely the same as 7 Plaintiff[’s] function report and testimony indicating the same limitations.” Id. at 8 19. Defendant adds that “[w]hile the ALJ did not discuss particularized reasons to 9 reject this testimony, the same rationale rejecting Plaintiff’s testimony applies to 10 Plaintiff’s friend[’s] identical testimony.” Id. 11 2. ALJ’s Consideration Of Lay Testimony 12 The ALJ did not consider or discuss Ms. Edwards’s lay opinion. 13 3. Lay Testimony 14 On November 14, 2015, Ms. Edwards completed a Third-Party Function 15 Report (“Report”) on Plaintiff’s behalf. Tr. 290-97. In her Report, Ms. Edwards 16 indicated that she has known Plaintiff for thirty years, she spends roughly twelve 17 hours per week with Plaintiff, and she goes to meetings, doctors’ appointments, 18 and lunch with Plaintiff. Tr. 290. Ms. Edwards noted that Plaintiff “can’t stand or 19 walk for a long time, his heart is weak pumping [at] 25%[,] no heavy lifting[,] his 20 hands hurt afterward. [Plaintiff is] short of breathing all the time.” Id. 21 (capitalization normalized). Ms. Edwards added that Plaintiff “takes naps during 22 the day, [and] [he] like[s] watching T.V.[.]” Tr. 291 (capitalization normalized). 23 Ms. Edwards also noted that Plaintiff does not care for any animals or other people, 24 he “sometimes ha[s] problems getting up from [the] toilet[,]” and he “has 25 problems ty[]ing his shoes, and getting up from his bed.” Id. (capitalization 26 normalized). Ms. Edwards noted that before Plaintiff’s illness began, Plaintiff used 27 to ride a bicycle, jog, “walk long periods of time[,]” and play sports, but that now, 1 plaintiff has chest pain, he “can’t sleep for a long time[,]” and he wakes up 2 approximately every two hours. Id. (capitalization normalized). 3 Ms. Edwards noted that Plaintiff needs special reminders to tie his shoes, 4 comb his hair, and take medication, and that she sets up Plaintiff’s medication in a 5 pill case for him. Tr. 292. Ms. Edwards indicated that Plaintiff makes simple 6 meals, such as sandwiches and frozen dinners twice daily, they “rarely” go out to 7 lunch, and that Plaintiff generally “can’t go out to eat or shop at stores[,]” because 8 these activities cause “to[o] much stress” for Plaintiff. Id. (capitalization 9 normalized). Ms. Edwards indicated that Plaintiff cannot do laundry, but that he 10 can do “some cleaning around [his] bedroom[,]” he can water a garden twice per 11 week, and he can “fold [his] bed[,]” but that he “sometimes” needs 12 encouragement to fold his bed, and that it takes Plaintiff twenty-five minutes to do 13 so. Tr. 291-93. (capitalization normalized). Ms. Edwards noted that Plaintiff 14 cannot go out alone “because of seizures and heart problems[,]” that Plaintiff can 15 drive, but that “someone needs to be in the car with [Plaintiff,]” and that she 16 grocery shops for Plaintiff twice per week because Plaintiff “does not go 17 shopping.” Tr. 293 (capitalization normalized). 18 Ms. Edwards noted that Plaintiff’s hobbies now include watching television 19 “all day long” and reading a book for one hour per day, and that Plaintiff’s social 20 activities have been curtailed since his illness began because of “stress with chest 21 pains and [fear] of having seizures.” Tr. 293-94 (capitalization normalized). Ms. 22 Edwards indicated that Plaintiff can talk on the phone with his family, but that 23 Plaintiff does not use the computer, and that Plaintiff attends church one or two 24 times per month, but that Plaintiff does not engage in social groups at church. Tr. 25 294. 26 Ms. Edwards opined that Plaintiff’s illness affects Plaintiff’s ability to lift, 27 squat, bend, stand, reach, walk, kneel, climb stairs, complete tasks, and use his 1 seizures cause a lot of problems with [Plaintiff’s] abilities. He can walk for 10 2 min[utes], . . . lift 5 pounds[,]” and Plaintiff “has a lot of chest pains during the day 3 [and] at night.” Id. Ms. Edwards added that Plaintiff needs a twenty minute break 4 after walking for ten minutes, that Plaintiff can pay attention for only fifteen 5 minutes, that Plaintiff sometimes does not finish what he starts due to 6 concentration issues, that Plaintiff can follow written instructions “ok fair[,]” and 7 that Plaintiff can handle stress and changes in routine “fair due to heart conditions 8 [and] chest pain.” Tr. 295-96 (capitalization normalized). Finally, Ms. Edwards 9 indicated that Plaintiff displays “unusual behavior” because Plaintiff has “a lot of 10 fear due to heart attack and seizures coming back” and that Plaintiff takes 11 medications for these issues, which Ms. Edwards listed specifically. Tr. 296-97. 12 4. Standard To Review ALJ’s Analysis Of Lay Testimony 13 “Lay testimony as to a claimant’s symptoms or how an impairment affects 14 the claimant’s ability to work is competent evidence that an ALJ must take into 15 account.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (citation omitted). 16 “Indeed, lay testimony as to a claimant’s symptoms or how an impairment affects 17 ability to work is competent evidence . . . and therefore cannot be disregarded 18 without comment.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th 19 Cir. 2006) (citation and internal quotation marks omitted). “Consequently, if the 20 ALJ wishes to discount the testimony of lay witnesses, he must give reasons that 21 are germane to each witness.” Id. (citations and internal quotation marks omitted); 22 see also id. (“Lay testimony as to a claimant’s symptoms is competent evidence 23 that an ALJ must take into account, unless he or she expressly determines to 24 disregard such testimony and gives reasons germane to each witness for doing so.” 25 (citation and internal quotation marks omitted)). 26 5. ALJ’ Decision Is Not Supported By Substantial Evidence 27 The RFC is the maximum a claimant can do despite her limitations. 20 1 limitations imposed by all of a claimant’s impairments, even those that are not 2 severe, and evaluate all of the relevant medical and other evidence, including the 3 claimant’s testimony. SSR 96-8p, available at 1996 WL 374184. The ALJ is 4 responsible for resolving conflicts in the medical testimony and translating the 5 claimant’s impairments into concrete functional limitations in the RFC. Stubbs- 6 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations 7 supported by substantial evidence must be incorporated into the RFC and, by 8 extension, the dispositive hypothetical question posed to the VE. Osenbrock v. 9 Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 10 Here, it is undisputed that the ALJ failed to consider or discuss the lay 11 opinion of Ms. Edwards, much less provide germane reasons for rejecting it. This 12 was an error. See Molina, 674 F.3d at 1114; Stout, 454 F.3d at 1053. This error was 13 harmful because Ms. Edwards opined that Plaintiff was more limited than the ALJ 14 acknowledged in Plaintiff’s RFC. For example, Ms. Edwards opined that Plaintiff 15 could stand for only ten minutes before needing a twenty-minute break. Tr. 295. 16 The ALJ, however, found that Plaintiff had the RFC to “stand and or walk a 17 combined 6 hours our of an 8-hour workday.” Tr. 20. Similarly, Ms. Edwards 18 opined that Plaintiff can lift only five pounds, whereas the ALJ found that Plaintiff 19 has the RFC to “lift and/or carry 20 pounds occasionally and 10 pounds 20 frequently.” Tr. 20, 295. 21 Thus, Ms. Edwards’s opinion regarding Plaintiff’s ability to lift and walk 22 contradict the ALJ’s RFC finding. 23 Moreover, Defendant’s argument—that the ALJ’s failure to “discuss 24 particularized reasons to reject [Ms. Edwards’s] testimony” was not “reversible 25 harmful error” because “the same rationale rejecting Plaintiff’s testimony applies 26 to Plaintiff’s friend[’s] identical testimony”—is not persuasive for two reasons. 27 ECF No. 21, Joint Stip. at 19. 1 First, Defendant’s post-hoc argument does not cure the ALJ’s failure to 2 consider and provide germane reasons for rejecting Ms. Edwards’s opinion because 3 the Court cannot affirm the ALJ’s decision on rationale not provided by the ALJ. 4 See Stout, 454 F.3d at 1054 (the Court cannot affirm the ALJ’s decision on grounds 5 not invoked by the Commissioner) (citation omitted). 6 Second, even if the Court could adopt Defendant’s rationale as reasoning 7 provided by the ALJ, Defendant’s argument is unpersuasive. As discussed above, 8 Ms. Edwards has known Plaintiff for thirty years, she spends roughly twelve hours 9 per week with Plaintiff, she goes to meetings and doctors’ appointments with 10 Plaintiff, she organizes Plaintiff’s medications in a pill container and reminds 11 Plaintiff to take his medications, and she grocery shops for Plaintiff twice per week. 12 Tr. 290-97. Thus, Ms. Edwards appears to have great longitudinal knowledge of 13 Plaintiff’s symptoms because she has spent countless hours helping Plaintiff with 14 his grocery shopping, medication, and taking Plaintiff to meetings and doctors’ 15 appointments during her thirty-year relationship with Plaintiff. As such, Ms. 16 Edwards’s opinion is strong evidence to corroborate Plaintiff’s symptom 17 statements, which are similar—or as Defendant asserts, are “identical”—to those 18 provided by Ms. Edwards. ECF No. 21, Joint Stip. at 19. Thus, it is unclear why 19 evidence that closely corroborates and, therefore, bolsters Plaintiff’s symptom 20 statements should be rejected due to its similarity to Plaintiff’s statements, rather 21 than viewed as providing good cause for Plaintiff’s symptom statements to be 22 adopted. The Court, however, reserves judgment on that question and instead 23 orders the ALJ to evaluate and address Ms. Edwards’s opinion on remand, 24 specifically taking into consideration Ms. Edwards’s longitudinal relationship with 25 Plaintiff. 26 Accordingly, because the ALJ committed harmful error by failing to provide 27 any reasons—much less germane ones—for rejecting Ms. Edwards’s opinion, and 1 | ALJ acknowledged in the ALJ’s RFC determination, the Court finds that the ALJ’s 2 | RFC determination and, by extension, the dispositive hypothetical question posed 3 | to the VE, were not supported by substantial evidence in the record. As such, the 4 | Court finds that the ALJ’s resulting step five finding, which was based “on the 5 | testimony of the | VE,]” was also not supported by substantial evidence in the 6 | record. Tr. 27. 7 Therefore, the Court finds that remand for further proceedings is 8 | appropriate here so that the ALJ may assess Ms. Edwards’s opinion and reassess 9 | Plaintiff’s RFC and ability to perform work at steps four and five. Consequently, 10 | the Court does not address Plaintiffs second issue raised. 11 IV. CONCLUSION 12 Because the Commissioner’s decision is not supported by substantial 13 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 14 | REVERSED and this case is REMANDED for further administrative proceedings 15 | under sentence four of 42 U.S.C. § 405(g). See Garrison v. Colvin, 759 F.3d 995, 16 | 1009 (9th Cir. 2014) (holding that under sentence four of 42 U.S.C. § 405(g), 17 | “[t]he court shall have power to enter . . . a judgment affirming, modifying, or 18 | reversing the decision of the Commissioner . .. , with or without remanding the 19 | cause for a rehearing.”’) (citation and internal quotation marks omitted). 20 IT IS SO ORDERED. 21 °° | DATED: 07/30/2020 NA aps ae 23 HONORABLE SHASHI H. KEWALRAMANI 74 United States Magistrate Judge 25 26 27 28