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Beltowski v. Colvin

United States District Court, D. Arizona

February 13, 2014

Marlene C. Beltowski, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security, which denied her disability insurance benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence and is based on legal error, the Commissioner's decision will be vacated and the matter remanded for further administrative proceedings.

I. BACKGROUND.

A. Factual Background.

Plaintiff was born in 1945. She completed high school and some college and she last worked as a sales representative for a cleaning business in 2002. Tr. 72. Plaintiff stopped working in 2002 due to a large thoracic mass in her chest that was causing breathing issues and rapid heartbeat. Tr. 73, 76. In addition to ongoing issues with the mass and associated issues related to her glucose levels, hyperthyroidism, and Graves' disease, Plaintiff has sought treatment for various problems with her eyes (Tr. 698-99), back pain resulting from degenerative discs (Tr. 318-19), and problems sleeping (Tr. 394-409).

B. Procedural History.

Plaintiff filed an application for disability insurance benefits on February 22, 2006, claiming disability since June 9, 2002. Tr. at 222. Plaintiff's application was denied on April 17, 2006, and, after reconsideration, on January 22, 2008. Tr. 124. Plaintiff was granted a hearing in which she appeared with counsel before ALJ Ronald S. Robins in Prescott, Arizona. Tr. 64-90. ALJ Robins found that Plaintiff was not disabled under the Social Security Act from the alleged onset date (June 9, 2002) through the date last insured (December 31, 2007). Tr. 105.

Upon review, the Appeals Council vacated the decision and remanded the case to an ALJ, noting the following issues: (1) further consideration should have been given to claimant's residual functional capacity ("RFC") in light of her severe asthma; (2) consideration of obesity is necessary; (3) the ALJ should have considered a vocational expert's opinion in light of one doctor's estimate that she would have to take 10-15 minute breaks and would be absent from work once a month. Tr. 111. The Appeals Council ordered the ALJ to give further consideration to the client's RFC, to consider Dr. Gross' treating source opinion, and to obtain evidence from a vocational expert and "identify and resolve any conflicts" between that opinion and information from the Dictionary of Occupational Titles ("DOT"). Tr. 112.

A remand hearing was held on April 13, 2012, before ALJ Sheldon Zisook. Tr. 43. ALJ Zisook issued a decision on May 15, 2012, again finding that Plaintiff was not disabled. Tr. 20. The Appeals Council denied review of this decision, making ALJ Zisook's decision the final decision of the Commissioner under 20 C.F.R. § 422.210(a).

II. Standard of Review.

Defendant's decision to deny benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In determining whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to support the Commissioner's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

III. Analysis.

For purposes of Social Security benefits determinations, a disability is

the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to ...

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