Buona v. Commissioner of Social Security Administration

          ORDER

          Bernardo P. Velasco United States Magistrate Judge.

         Plaintiff Dana Jo Buona filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. The Magistrate Judge has jurisdiction over this matter pursuant to the parties consent under 28 U.S.C. § 636(c). (Doc. 11). The matter is now fully briefed before this Court (Docs. 14, 18, 21). For the following reasons, the Court vacates the Commissioner's decision and remands for consideration in accordance with this Order.

         I. PROCEDURAL HISTORY

         On February 1, 2013, Plaintiff filed an application for Social Security Disability Insurance Benefits, and on February 22, 2013 filed an application for Supplemental Security Insurance Benefits. (Administrative Record (“AR”) 230-33, 238-43). Plaintiff alleged disability as of June 1, 2012 (AR 230, 238) due to: sciatica, fibromyalgia, chronic pain syndrome, back injury, chronic interstitial cystitis, irritable bowel constipation, chronic fatigue syndrome, sleep apnea, depression, cervical discitis, and chronic migraines. (AR 257). Plaintiff's application was initially denied on May 24, 2013 (AR 110, 159), and upon reconsideration on November 27, 2013 (AR 171). On May 19, 2015, Plaintiff appeared with counsel and testified at an administrative hearing in front of an Administrative Law Judge (“ALJ”). (AR 48). The ALJ issued an unfavorable decision on August 26, 2015. (AR 16-47). Following Plaintiff's Request for Review (AR 14), on March 6, 2017, the Appeals Counsel denied Plaintiff's request (AR 1) making the ALJ's decision the Commissioner's final decision for the purposes of judicial review.

         Plaintiff filed the instant action on April 20, 2017, arguing that the ALJ erred because she: (1) failed to provide clear and convincing reasons for discrediting Plaintiff's testimony, (2) did not give germane reasons for not considering reports by third-party lay persons, (3) erroneously excluded consulting physician Fred Wiggins' opinion that Plaintiff's physical ailments would cause missed work, and (4) improperly determined that other work existed for Plaintiff in the national economy. (Doc. 1). Because the Court finds that the ALJ erred when evaluating Plaintiff and third-party's testimony, and this error was not harmless to the determination of disability, it does not reach Plaintiff's other arguments.

         II. PLAINTIFF'S BACKGROUND, STATEMENTS IN THE RECORD, AND VOCATIONAL EXPERT'S FINDINGS

         Plaintiff was 38 years old on the date of the alleged onset of disability. (Doc. 18 at 2). She completed high school and one semester at a junior college. (AR 52).

         Plaintiff testified at the administrative hearing that from approximately 2000-2007 she worked part-time for a business owned by her ex-husband. (AR 53). Plaintiff answered phones, created invoices, input data into a computer, and scheduled appointments. (AR 53-54). She worked from home between two to four hours a day, half sitting and half walking or standing. (AR 54). Petitioner left this job when she left her ex-husband. (AR 55).

         From 2008-2011, Petitioner stated that she worked at a relative's law firm as a receptionist answering phones and obtaining information from clients. (AR 55-56). At work she spent one-third of her workday standing, one-third walking, and one-third sitting. (AR 57). Petitioner was scheduled to work 5 days a week for 35 hours, but often missed work due to migraines. (AR 57). On the days she did not feel well, Plaintiff had the option to lie down on a futon at the office. (AR 58). Petitioner lost this job because she frequently missed work and committed clerical errors. (AR 57).

         Last, Petitioner worked as a teacher's aide at a charter school run by another family member from August 2011 to June 2012. (AR 58-59). At this job, she helped second grade students with math five days a week for a total of 27 hours. (AR 59). She was able to sit, stand, and walk as needed. (AR 59). She discontinued this work because the school year had ended and she was scheduled for a spinal fusion. (AR 60).

         The Vocational Expert (“VE”) testified that Plaintiff's prior work included teacher's aide, clerical receptionist, and administrative clerk. (AR 80). The ALJ asked the VE what work was possible for an individual limited to light work at a non-production pace; occasional climbing, stairs, stooping, kneeling, crouching, crawling, and overhead reaching bilaterally; with no exposure to extreme cold, vibration, or unprotected heights the VE determined that an individual could not perform Plaintiff's past work, but could still perform the work of mail clerk, storage facility rental clerk, charge clerk, food and beverage order clerk, and telemarketer. (AR 83-84). However, the VE added that if the hypothetical individual also needed to miss two or three days of work per month “it would preclude all jobs.” (AR 85-88).

         III. SUMMARY OF ALJ'S FINDINGS

         Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§ 404.1520, 416.920. To establish disability, the claimant must show: (1) she has not performed substantial gainful activity since the alleged disability onset date (“step one”); (2) she has a severe impairment(s) (“step two”); and (3) her impairment(s) meets or equals the listed impairment(s) (“step three”). Id. “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed[, ] . . . the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC).” Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2015). At this step, the ALJ considers (a) whether there is an impairment that would reasonably be expected to cause the claimant's symptoms, and (b) the severity of claimant's ailments, including intensity, persistence, and limiting effects of alleged symptoms. SSR 96-7p. If the claims of intensity, persistence and limiting effects are not supported by the evidence, the ALJ needs to determine, based on the record, whether plaintiff's claims are credible. Id. Then, at step five, “[a]fter developing the RFC, the ALJ must determine whether the claimant can perform past relevant work.” Dominguez, 808 F.3d at 405. At this stage, “the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Id.; 20 C.F.R. §§ 404.1520, 416.920.

         In this case, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 1, 2012. (AR 23).

         At step two, the ALJ determined that Plaintiff had severe impairments, including “degenerative disc disease of cervical spine variously diagnosed as cervical radiculopathy, post-laminectomy syndrome in the cervical region, cervical spondylosis, cervicalgia, cervical spinal stenosis, and cervical spondylosis with facet syndrome, status post cervical discectomy and fusion at ¶ 6-C7; lumbar degenerative disc disease variously diagnosed as thoracic/lumbosacral neuritis/radiculitis, lumbosacral spondylosis without myelopathy, lumbar radiculopathy, lumbar facet syndrome; labral tear and trochanteric bursitis of the left hip; chronic pain syndrome; and affective and anxiety disorders.” (AR 23).

         But the ALJ decided, at step three, that the Plaintiff's impairments did not meet or equal the listed impairments, either singularly or in combination. (AR 23-24).

         The ALJ found that while Plaintiff's impairments could cause the purported symptoms, the evidence did not support Plaintiff's claims of the limiting effects of these impairments. (AR 31-32). She further found that Plaintiff's subjective claims of the intensity, frequency, and limiting effects of her impairments were not credible. (AR 31).

         The ALJ found that given the limiting effects of her ailments, Plaintiff's RFC included performing simple, unskilled, light work at below a production pace. (AR 26, 31). The RFC included occasional walking of stairs and ramps, as well as stooping, kneeling, crouching, crawling, and reaching overhead. (AR 26) However, the RFC provided that Plaintiff should not be exposed to “extreme cold, vibrations, and hazards.” (AR 26).

         At step five, the ALJ concluded that Plaintiff was not disabled; and given Plaintiff's RFC, age, education, and work experience she could not perform past relevant work, but could perform the occupations of office helper, mail clerk, storage facility rental clerk, food and beverage order clerk, and telemarketer. (AR 37-40).

         IV. STANDARD OF REVIEW

         The Court has the “power to enter, upon the pleadings and the transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The factual findings of the Commissioner shall be conclusive so long as the findings are based upon substantial evidence and there is no legal error. 42 U.S.C.§§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance, '” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). Moreover, the Commissioner, not the Court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence, and determine the case accordingly. Matney, 981 F.2d at 1019.

         However, the Commissioner's decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence. . . . Rather, the Court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.” Id. (internal citations and quotations omitted).

         V. DISCUSSION

         a. The ALJ Failed to Provide Clear and Convincing Reasons for ...