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Montalbo v. Colvin

United States District Court, D. Hawaii

February 1, 2017

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 REVERSES the decision of the Commissioner and REMANDS to the ALJ for further administrative proceedings consistent with this Order.


         On March 13, 2013, Plaintiff Lawrence Montalbo (“Montalbo”) protectively filed an application for Supplemental Social Security Income (“SSI”), alleging disability beginning on January 1, 2010.[1] 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 20.

         On 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.

         Montalbo 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.

         The Court held a hearing on Monday, January 30, 2017 regarding Montalbo's requested review of the Commissioner's decision.


         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); 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. 2014).

         In 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).


         “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.” 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 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. 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 1098.

         At step 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 1098.

         Step 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. § 416.920(a)(4)(ii).

         The 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. § 416.920(e).

         Step 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.

         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. § 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. § 416.920(g)(1).

         II. The ALJ's Decision

         a. Steps One, Two, and Three

         The ALJ 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.

         b. Steps Four and Five

         Moving 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.

         In 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.

         The ALJ 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 ...

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