Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parvon v. Colvin

United States District Court, D. Hawaii

March 11, 2016

AL PARVON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


Alan C. Kay Sr. United States District Judge

For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff’s Motion for Summary Adjudication, ECF No. 21, and thereby AFFIRMS in part and REVERSES in part the Commissioner of Social Security’s (“Commissioner”) decision denying Social Security disability benefits to Plaintiff Al Parvon (“Parvon” or “Plaintiff”), Administrative Record (“AR”) 15-24. The Court hereby REMANDS this case to the Administrative Law Judge (“ALJ”) for further administrative proceedings consistent with this Order.


On June 19, 2012, Plaintiff protectively filed an application for a period of disability and disability insurance benefits pursuant to Title II of the Social Security Act. AR 15, 61, 130-32. That same day, he also protectively filed an application for supplemental security income pursuant to Title XVI of the Social Security Act. AR 15, 60, 133-38. In his applications Plaintiff alleged he was disabled as of June 1, 2011. AR 15, 130-38. He was 56 years old at the onset of his alleged disability. AR 151; Pl.’s Br. in Supp. of Mot. for Summ. Adjudication (“Pl.’s Br.”) at 1.

Plaintiff’s claims were initially denied on September 19, 2012. AR 15, 60-61, 71-82. He thereafter requested a hearing before an ALJ, which took place on October 9, 2013 in Buffalo, New York. AR 15, 29-59, 83-84. At the hearing, Plaintiff requested a closed period of disability from June 1, 2011 to January 14, 2013, to which the ALJ limited his review. AR 15, 36.

In a written opinion dated December 10, 2013, the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act from June 1, 2011 through the date of the decision. AR 15. His decision was based on a determination that Plaintiff was capable of performing his past relevant work as a mobile home sales representative, computer sales representative, or office machines sales representative. AR 23. The ALJ therefore denied Plaintiff’s applications for disability insurance benefits and supplemental security income. AR 24.

On January 24, 2014, Plaintiff filed with the Social Security Administration’s (“SSA”) Appeals Council a request for review of the ALJ’s decision. AR 10-11. He submitted to the Appeals Council a decision by the Department of Veteran’s Affairs (“VA”), dated September 4, 2013, finding Plaintiff disabled as of April 10, 2012. AR 199-205. On February 11, 2015, the Appeals Council denied Plaintiff’s request for review, finding that the ALJ’s determination was not contrary to the weight of the evidence of record. AR 1-7. Additionally, the Appeals Council characterized the VA decision as “new information . . . about a later time, ” stating that the decision was dated September 12, 2014, after the ALJ had rendered a decision on December 10, 2013.[1] AR 2. The Appeals Council also noted that the VA “has a different evaluation process and utilizes different standards to determine disability.” AR 2. Thus, the ALJ’s decision became the Commissioner’s final decision. AR 1.

On March 31, 2015, Plaintiff filed a Complaint with this Court seeking judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). Compl. - Social Security Appeal at 1. Plaintiff then filed a Motion for Summary Adjudication on January 13, 2016. ECF No. 21-22. In his accompanying brief, Plaintiff alleges that the SSA committed legal error when 1) the ALJ submitted his own lay judgment for that of the medical experts on record; 2) the ALJ failed to accord appropriate deference to the opinion of Plaintiff’s treating psychiatrist; 3) the ALJ’s residual functional capacity finding and vocational expert (“VE”) hypothetical failed to include the appropriate mental limitations; and 4) the Appeals Council failed to consider and address the VA’s September 2013 disability finding. Pl.’s Br. at 7-8.

Defendant Commissioner of Social Security Carolyn W. Colvin (“Defendant”) filed an Answering Brief on February 13, 2016. Def.’s Answering Br. (“Def.’s Br.”), ECF No. 25. On February 22, 2016, Plaintiff filed a Reply in support of his Motion. Pl.’s Reply Br. in Further Supp. of His Mot. for Summ. Adjudication (“Pl.’s Reply”), ECF No. 26.

The Court held a hearing on March 7 regarding the instant Motion, in which counsel for both parties appeared telephonically.


I. Jurisdiction and Standard of Review

A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of Social Security.[2]

A final decision by the Commissioner denying Social Security disability benefits will not be disturbed by the reviewing district court if it is free of legal error and supported by substantial evidence. See 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (reviewing a district court’s decision de novo). In determining the existence of substantial evidence, the whole administrative record must be considered, weighing the evidence that both supports and detracts from the Commissioner’s conclusion. See Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).

“Substantial evidence means more than a scintilla but less than a preponderance.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citations omitted). It is also “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. Finally, “[w]here the evidence may reasonably support more than one interpretation, [the court] may not substitute [its] judgment for that of the Commissioner.” Verduzco, 188 F.3d at 1089.

II. Summary Adjudication

The standard for summary adjudication is the same as the standard for summary judgment. Rexel, Inc. v. Rexel Int’l Trading Corp., 540 F.Supp.2d 1154, 1160 (C.D. Cal. 2008); see also Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001) (stating that the court’s review of a motion for summary adjudication is governed by Federal Rule of Civil Procedure 56(c)). Summary judgment, or summary adjudication, is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

“A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor”).


“To establish a claimant’s eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.” 42 U.S.C. § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A claimant must satisfy both requirements in order to qualify as “disabled” under the Social Security Act. Tackett, 180 F.3d at 1098.

I. The SSA’s Five-Step Process for Determining Disability

The Social Security regulations set forth a five-step sequential process for determining whether a claimant is disabled. Ukolov, 420 F.3d at 1003; see 20 C.F.R. § 404.1520. “If a claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Ukolov, 420 F.3d at 1003 (citations omitted in original). The claimant bears the burden of proof as to steps one through four, whereas the burden shifts to the SSA for step five. Tackett, 180 F.3d at 1098.

At step one the ALJ will consider a claimant’s work activity, if any. 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds the claimant is engaged in substantial gainful activity he will determine that the claimant is not disabled, regardless of the claimant’s medical condition, age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is work that is defined as both substantial - i.e. work activity involving significant physical or mental activities - and gainful - i.e. work activity done for pay or profit. 20 C.F.R. § 404.1572. If the ALJ finds that the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. Tackett, 180 F.3d at 1098.

Step two requires the ALJ to consider the medical severity of the claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). Only if the claimant has an impairment or combination of impairments that “significantly limits [his] physical or mental ability to do basic work activities” will the analysis proceed to step three. 20 C.F.R. § 404.1520(c). If not, the ALJ will find the claimant is not disabled and the analysis stops. 20 C.F.R. § 404.1520(a)(4)(ii).

The severity of the claimant’s impairments is also considered at step three. 20 C.F.R. § 404.1520(a)(4)(iii). Here, the ALJ will determine whether claimant’s impairments meet or medically equal the criteria of an impairment specifically described in the regulations. Id.; see also 20 C.F.R. Part 404, Subpart P, App. 1. If the impairments do meet or equal these criteria, the claimant is deemed disabled and the analysis ends. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the analysis proceeds to step four. 20 C.F.R. § 404.1520(e).

Step four first requires the ALJ to determine the claimant’s residual functional capacity. Id. Residual functional capacity is defined as the most the claimant can still do in a work setting despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s residual functional capacity, the ALJ will consider all of the relevant evidence in the claimant’s case record regarding both severe and non-severe impairments. 20 C.F.R. § 404.1545. This assessment is then used to determine whether the claimant can still perform his past relevant work. 20 C.F.R. § 404.1520(e). Past relevant work is defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). The ALJ will find that the claimant is not disabled if he can still perform his past relevant work, at which point the analysis will end. Otherwise, the ALJ moves on to step five.

In the fifth and final step, the ALJ will once again consider the claimant’s residual functional capacity, as well as his age, education, and work experience, in order to determine whether the claimant can perform other work. 20 C.F.R. § 404.1520(a)(4)(v). Here, the Commissioner is responsible for providing “evidence that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do.” 20 C.F.R. § 404.1560(c)(2). If the claimant is unable to perform other work, he is deemed disabled; if he can make an adjustment to other available work, he is considered not disabled. 20 C.F.R. § 404.1520(g)(1).

II. ALJ’s Analysis

a. Steps One and Two

The ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from June 1, 2011 through January 14, 2013. AR 17. He next found that Plaintiff’s alcohol abuse/dependence, depression, and hernia constituted severe impairments because they “significantly limit the [Plaintiff’s] ability to perform basic work activities.” AR 17-18. The ALJ also found that Plaintiff’s non-severe impairments included low back pain, sleep apnea, hypertension, a transient ischemic attack in 2010, right ear hearing loss, obesity, and a renal cyst. AR 18. Neither party contests these findings.

b. Steps Three and Four

Moving to step three, the ALJ next found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of an impairment listed in the Social Security regulations. AR 18-19. In so concluding, the ALJ found Plaintiff did not have impairments resulting in two or more of the following “paragraph B” criteria: “marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration.” AR 18; see also 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02(B). The ALJ defined a “marked” limitation as “more than moderate but less than extreme, ” and “repeated episodes of decompensation, each of extended duration” as three episodes within one year, each lasting at least two weeks. AR 18; see also 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00(C).

Measuring Plaintiff’s impairments against the “paragraph C” criteria in the regulations, the ALJ also found “no evidence of repeated episodes of decompensation of extended duration, a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate, or current history of one or more years’ inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement.” AR 19; see also 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02(C).

The ALJ then proceeded to assess Plaintiff’s residual functional capacity for purposes of step four. AR 19-23. He found that Plaintiff was capable of performing light work with some limitations, and that Plaintiff had “occasional limitations in the ability to understand, remember and carry out detailed instructions (defined as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.