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Cortez v. Commissioner of Social Security Administration

United States District Court, D. Oregon

March 3, 2018

JUAN GABREIL VILLA CORTEZ, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          John E. Haapala, Attorney for Plaintiff

          Renata Gowie Assistant United States Attorney

          Sarah Moum Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, United States District Judge.

         Plaintiff Juan Gabreil Villa Cortez brings this action for judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The Commissioner's decision is reversed and remanded for further administrative proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on December 13, 2012, alleging disability as of December 7, 2012. Tr. 80.[1] His application was denied initially and on reconsideration. Tr. 92-96, 99-102. On June 10, 2015, Plaintiff appeared, with counsel and an interpreter, for a hearing before an Administrative Law Judge (ALJ). Tr. 39. On June 29, 2015, the ALJ found Plaintiff not disabled. Tr. 32. The Appeals Council denied review. Tr. 1.

         FACTUAL BACKGROUND

         Plaintiff initially alleged disability based on back problems and carpal tunnel. Tr. 230. He was 36 at the time of the administrative hearing. Tr. 30. Plaintiff has a second- or third-grade education and past relevant work experience as a bander, construction worker, tree planter, fork lift driver, and farm worker. Tr. 30, 231.

         SEQUENTIAL DISABILITY ANALYSIS

         A claimant is disabled if unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether the impairment meets or equals “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date of December 7, 2012. Tr. 22. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “lumbar spinal stenosis, status-post surgery, left carpal tunnel syndrome, status-post release, lateral epicondylitis of the right elbow, obesity, dysthymic disorder, anxiety disorder, and depressive disorder.” Tr. 22. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 23. At step four, the ALJ concluded that Plaintiff has the following residual functional capacity:

[T]he claimant has the residual functional capacity to lift and carry up to twenty pounds frequently and up to ten pounds occasionally and to sit, stand, and, and/or [sic] walk for up to six hours in an eight-hour day, with normal breaks. The claimant is limited to no more than frequent climbing of ramps or stairs and must never climb ladders, ropes, or scaffolds. The claimant is limited to no more than frequent stooping. With the left upper extremity, the claimant is limited to no more than frequent handling or fingering. With the right upper extremity, the claimant is limited to no more than frequent reaching in all directions. The claimant can understand and carry out simple instructions.

         Tr. 25. Because of these limitations the ALJ concluded that Plaintiff could not perform his past relevant work as a bander, construction worker, tree planter, fork lift driver, or farm worker. Tr. 30. But at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “cleaner, housekeeping, ” “cafeteria attendant, ” and “assembler, small products I.” Tr. 31. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 31-32.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than preponderance.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

         The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id.; see also Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

         DISCUSSION

         Plaintiff contends that the ALJ erred by (1) relying on vocational expert testimony based on incomplete hypotheticals; (2) ignoring the opinion of Plaintiff's treating doctor, Martin Hurtado, MD; (3) improperly discounting the opinion of Plaintiff's physical therapist, Judy Cirullo, PT; and (4) improperly discrediting Plaintiff's symptom testimony. Pl.'s Op. Br. 6, ECF 10. Because the ALJ erred in finding that Plaintiff has the ability to communicate in English, the decision of the Commissioner is reversed and remanded for further proceedings.

         I. RFC Assessment & VE Hypothetical

         Plaintiff alleges that the ALJ erred in relying on incomplete hypotheticals presented to the Vocational Expert (“VE”). Pl. Br. 5-10. The Residual Functional Capacity (“RFC”) is the most a person can do, despite his or her physical or mental limitations. 20 C.F.R. §§ 404.1545, 416.945. In formulating a RFC, the ALJ must consider all medically determinable impairments, including those that are not “severe, ” and evaluate “all of the relevant medical and other evidence, ” including the claimant's testimony. Id.; SSR 96-8p. An ALJ may rely on the testimony of a VE to determine whether a claimant retains the ability to perform past relevant work or other work in the national or regional economy at step five. See Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is required to include only those limitations that are supported by substantial evidence in the RFC and hypotheticals posed to a VE. See Id. at 1163- 65. “Conversely, an ALJ is not free to disregard properly supported limitations, ” including improperly discredited symptom testimony provided by the claimant or lay witness. Robbins, 466 F.3d at 886. “[I]f an ALJ's hypothetical is based on a residual functional capacity assessment that does not include some of the claimant's limitations, the vocational expert's testimony ‘has no evidentiary value.'” Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (citing Carmickle v. ...


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