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Ortiz v. Colvin

United States District Court, D. Arizona

February 28, 2014

Maria Christina Ortiz, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant.


CHARLES R. PYLE, Magistrate Judge.

Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiff's Opening Brief (Doc. 15) ("Plaintiff's Brief"), Defendant's Opposition to Plaintiff's Opening Brief (Doc. 16) ("Defendant's Brief"), and Plaintiff's Reply (Doc. 17). For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further proceedings.


In December 2008, Plaintiff filed an application for supplemental social security income under the Social Security Act. (Administrative Record ("AR.") 106). Plaintiff, who was born in 1970 and completed high school, worked from 1995-1996 as a cosmetologist and for one week in 2003 as a secretary. (AR. 53, 106, 130, 169-74, 204). Plaintiff stopped working as a cosmetologist when she "got pregnant, and I never went back cause... that's when I started getting a lot of hand pain, the carpal tunnel.'" (AR. 52; see also AR. 175 (when working as a cosmetologist, Plaintiff had difficulty and pain using her hands)). While working as a secretary, her back went out and the keyboard was "too much on my hands...." (AR. 53). She alleges she has been unable to work since January 1, 2003 due to fibromyalgia, herniated disc, osteoarthritis, degenerative disc and joint disease, restless leg syndrome, spinal degeneration, carpal tunnel, anxiety and depression. (AR. 106, 124). Plaintiff would like to work, but is unable to because she is always in pain. (AR. 152). Plaintiff's application was denied initially and on reconsideration, after which Plaintiff requested a hearing before an administrative law judge ("ALJ"), who subsequent to the hearing, concluded Plaintiff was not disabled. (AR. 24-31, 43-5, 67, 74). Plaintiff requested Appeals Council review and submitted additional evidence. (AR. 198-201, 404-19, 440). On February 7, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's November 19, 2010 decision the final decision of the Commissioner. (AR. 1-4).

Plaintiff then initiated the instant action, raising the following grounds for relief: (1) the ALJ's finding that Plaintiff was limited to "frequent handling" (AR 27) required vocational expert testimony; (2) the ALJ's finding that Plaintiff needed to change position on occasion is not reviewable; and (3) the ALJ improperly rejected treating Dr. Wristen's opinion.


The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

Substantial evidence is "more than a mere scintilla[, ] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 ( citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, the Commissioner's decision "cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Tackett, 180 F.3d at 1098 ( quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must "consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Id. ( quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).


Social Security Administration regulations require the ALJ to evaluate disability claims pursuant to a five-step sequential process. 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show she has not worked since the alleged disability onset date, she has a severe impairment, and her impairment meets or equals a listed impairment or her residual functional capacity ("RFC")[1] precludes her from performing past work. Where the claimant meets her burden, the Commissioner must show that the claimant is able to perform other work, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of claimant's age, education, and work experience.


The ALJ found that Plaintiff had the following severe impairments: mild degenerative disc disease; generalized pain syndrome/fibromyalgia; mild to moderate heel spurs; impingement syndrome of the shoulder; and carpal tunnel syndrome. (AR. 24). He determined that Plaintiff had the RFC to perform sedentary work, except that she "is restricted from prolonged standing and needs to change positions on occasion. The claimant can engage in frequent handling." (AR. 26-7). The ALJ found that although Plaintiff had no past relevant work, consideration of the Medical-Vocational Guidelines ("Grids") resulted in the conclusion that "there are jobs that exist in significant numbers in the national economy that the claimant can perform[.]" (AR. 30). Therefore, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, since December 18, 2008, the date the application was filed. (AR. 31).


The ALJ stated that Plaintiff's limitation to frequent handling had "little or no effect on the occupational base of unskilled sedentary work." (AR. 26-7, 31). Therefore, the ALJ used the Grids as a framework for determining Plaintiff was not disabled. Plaintiff argues that the ALJ should have called a vocational expert to support his step-five ...

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