United States District Court, D. Hawaii
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF
SOCIAL SECURITY TO DENY PLAINTIFF SUPPLEMENTAL SOCIAL
SECURITY INCOME AND REMANDING FOR FURTHER
C. Kay Sr. United States District Judge
reasons set forth below, the Court REVERSES the decision of
the Commissioner and REMANDS to the ALJ for further
administrative proceedings consistent with this Order.
March 13, 2013, Plaintiff Lawrence Montalbo
(“Montalbo”) protectively filed an application
for Supplemental Social Security Income (“SSI”),
alleging disability beginning on January 1,
2010. AR 181. The application was initially
denied on May 10, 2013, and denied again upon reconsideration
on December 20, 2013. AR 88, 92. Montalbo then requested a
hearing before an Administrative Law Judge
(“ALJ”), which was held on January 6, 2015. AR
January 30, 2015, the ALJ issued his written decision finding
Montalbo was not disabled. AR 20-28. Montalbo filed a request
with the Appeals Council to review the ALJ's decision on
March 18, 2015. AR 15. The Appeals Council denied his
request, finding no reason to review the ALJ's decision,
and adopted the ALJ's decision as the final decision of
the Commissioner on May 11, 2016. AR 1-3.
filed his complaint on June 10, 2016 seeking a review of the
denial of his application for SSI benefits. ECF No. 1. On
October 18, 2016, Montalbo filed his opening brief
(“Opening Br.”). ECF No. 14. Defendant, the
Acting Commissioner of Social Security Carolyn W. Colvin
(“Commissioner”) filed her answering brief on
December 5, 2016 (“Ans. Br.”). ECF No. 15.
Montalbo filed his reply brief on December 20, 2016
(“Reply Br.”). ECF No. 16.
Court held a hearing on Monday, January 30, 2017 regarding
Montalbo's requested review of the Commissioner's
district court has jurisdiction pursuant to 42 U.S.C. §
405(g) to review final decisions of the Commissioner of
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);
Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016)
(reviewing a district court's decision de novo). Even if
a decision is supported by substantial evidence, it
“will still be set aside if the ALJ did not apply
proper legal standards.” See Gutierrez v.
Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir.
determining the existence of substantial evidence, the
administrative record must be considered as a whole, weighing
the evidence that both supports and detracts from the
Commissioner's factual conclusions. See id.
“Substantial evidence means more than a scintilla but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. “If the evidence can
reasonably support either affirming or reversing, the
reviewing court may not substitute its judgment for that of
the Commissioner.” Id. (internal citation and
quotation omitted). Rather, courts “leave it to the ALJ
to determine credibility, resolve conflicts in the testimony,
and resolve ambiguities in the record.” Treichler
v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098
(9th Cir. 2014).
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.” Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 42 U.S.C.
§ 423(d)(2)(A). A claimant must satisfy both
requirements in order to qualify as “disabled”
under the Social Security Act. Tackett, 180 F.3d at
The SSA's Five-Step Process for Determining
Social Security regulations set forth a five-step sequential
process for determining whether a claimant is disabled.
Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir.
2014); see 20 C.F.R. § 416.920(a)(4). “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 v.
Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations
omitted in original); see 20 C.F.R. §
416.920(a)(4). The claimant bears the burden of proof as to
steps one through four, whereas the burden shifts to the
Commissioner for step five. Tackett, 180 F.3d at
one, the ALJ will consider a claimant's work activity, if
any. 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds the
claimant is engaged in substantial gainful activity, it will
determine that the claimant is not disabled, regardless of
the claimant's medical condition, age, education, or work
experience. 20 C.F.R. § 416.920(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
two requires that the ALJ consider the medical severity of
the claimant's impairments. 20 C.F.R. §
416.920(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. § 416.920(c). If not, the ALJ will find the
claimant is not disabled and the analysis stops. 20 C.F.R.
severity of the claimant's impairments is also considered
at step three. 20 C.F.R. § 416.920(a)(4)(iii). Here, the
ALJ will determine whether the claimant's impairments
meet or 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
meet or equal these criteria, the claimant is deemed disabled
and the analysis ends. 20 C.F.R. § 416.920(a)(4)(iii).
If not, the analysis proceeds to step four. 20 C.F.R. §
four first requires that the ALJ 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. § 416.945(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. § 416.945. This assessment is then used to
determine whether the claimant can still perform his past
relevant work. 20 C.F.R. § 416.920(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. § 416.960(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.
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. §
416.920(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. § 416.960(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. §
The ALJ's Decision
Steps One, Two, and Three
found that at step one, Montalbo had not engaged in
substantial gainful activity since the date of the
application, and at step two, that he suffered from three
severe impairments: degenerative disc disease of the lumbar
spine, status post fusion, and Hepatitis C. AR 22. At the
third step, the ALJ found that these impairments did not meet
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. AR 23. Montalbo agrees with the findings the
ALJ made at these steps. Opening Br. at 1.
Steps Four and Five
to steps four and five, the ALJ determined Montalbo's
residual functional capacity to be:
lift and carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk 4 hours total in an 8-hour
workday, but not more than 30 minutes at a time, after which
he needs to get off his feet for 5 minutes, after which he
can the [sic] return to standing and walking, and he needs a
medically hand-held device for extended ambulation of a city
block or more; sit 6 hours in an 8-hour workday, but he needs
to make a brief body adjustment every 30 minutes while
staying at his workstation; push and pull on an unlimited
basis aside from as limited by lifting and carrying;
occasionally climb ramps and stairs but never ladders, ropes,
or scaffolds; and occasionally balance, stoop and crouch but
never kneel or crawl.
AR 24. Based on this RFC, the ALJ determined at step 4 that
Montalbo is unable to perform any past relevant work. AR
25-26. Montalbo agrees with the ALJ's conclusion that he
is unable to perform past relevant work. Opening Br. at 1.
However, he asserts that the ALJ's RFC finding is not
grounded in substantial evidence, and therefore the ALJ erred
in concluding at step 5 that Montalbo is not disabled because
there is other work he can perform. Opening Br. at 11.
making its RFC finding, the ALJ summarized Montalbo's
testimony regarding his symptoms. AR 24-25. In particular,
the ALJ noted that Montalbo appeared at the hearing with a
cane, which the ALJ stated Montalbo admitted was not
medically prescribed; and Montalbo could only stand on his
feet for 20-30 minutes and walk about 20 yards, and could
only sit for about 15 minutes. AR 24. According to the ALJ,
Montalbo testified that he needed help with dressing himself
and had difficulty bending down, but also that he could carry
laundry and shop twice a month for up to an hour. AR 24-25.
The ALJ credited Montalbo's need for a cane, but did not
find the intensity and limiting effects of his symptoms
entirely credible. AR 25.
also gave “great weight” to the testimony of Dr.
Morse, a non-examining physician because it was “based
on the most recent medical evidence, including the
claimant's testimony at the hearing.” AR 25. Dr.
Morse testified that the medical evidence did not describe
significant motor limitations, but rather just pain issues
due to a prior surgery. AR 25. The ALJ found that the State
Agency medical consultants' conclusion that “the
claimant could lift and/or carry 20 pounds occasionally and
up to 10 pounds frequently, with occasional postural
limitations, ” was consistent with Dr. Morse's
testimony, and noted that the consultants had initially
determined Montalbo could stand and walk for 2 hours and upon
reconsideration concluded he could stand and walk for 6