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Chavarria v. Colvin

United States District Court, D. Arizona

March 28, 2014

Victor Chavarria, 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). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief ("Plaintiff's Brief") (Doc. 14), Defendant's Opposition to Plaintiff's Opening Brief ("Defendant's Brief") (Doc. 19), and Plaintiff's Reply (Doc. 22). For the following reasons, the Court remands the matter for the Commissioner to calculate benefits based upon a finding of disability commencing September 1, 2004.


Plaintiff was born on July 28, 1957, has an eighth grade education, is illiterate, and has worked in the past as a mason, construction laborer, and janitor. (Administrative Record ("AR.") 72, 83, 400, 426, 457; see also AR. 233, 400, 545, 555, (Plaintiff began working as a mason at a young age after dropping out of eighth grade)). In February 2004, Plaintiff filed an application for disability insurance benefits alleging inability to work since March 1, 2001 due to: problems with his back, shoulder, arm, feet, vision, and intestines; chest pain; constant migraines; and numbness in his hands and feet. (AR. 72-74, 82). After a hearing, the ALJ issued a decision denying benefits and the Appeals Council denied Plaintiff's request for review. (AR. 6-8, 11-23). Plaintiff appealed to the District Court for the District of Arizona and, on March 31, 2008, the matter was remanded for further proceedings, including consideration of lay statements from Plaintiff's siblings, the severity of Plaintiff's mental impairments, Plaintiff's credibility, and his claim of illiteracy. (AR. 462-66, 470-92, 493-505). Upon remand, the Appeals Council vacated the ALJ's decision and remanded the case to the ALJ for further proceedings. (AR. 459-61). On January 7, 2009, the ALJ held a hearing where Plaintiff testified. (AR. 659-81). On June 18, 2009, the ALJ issued her decision denying Plaintiff benefits through December 31, 2006, the date he was last insured. (AR. 448-58).

Petitioner sought Appeals Council review. The Appeals Council considered additional medical evidence submitted by Plaintiff as well as "the fact that since the date of the Administrative Law Judge's decision, you were found to be under a disability beginning on July 2, 2009, based on the application you filed on July 2, 2009; however, the Council found this information does not warrant assuming jurisdiction. The current hearing decision addresses the Court's concerns and is supported by substantial evidence." (AR. 438). Consequently, the ALJ's June 18, 2009 decision became the final decision of the Commissioner.

Petitioner then initiated the instant action on the grounds that the ALJ improperly rejected: (1) testimony from Plaintiff's siblings; (2) medical records from Nurse Practitioner McVay; and (3) Plaintiff's symptom testimony. (Plaintiff's Brief). Plaintiff also argues that he is disabled under the grids because he cannot perform light work. ( Id. ).


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)).


SSA 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 he has not worked since the alleged disability onset date, he has a severe impairment, and his impairment meets or equals a listed impairment or his residual functional capacity ("RFC")[1] precludes him from performing past work. Where the claimant meets his burden, the analysis progresses to step 5 where 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.


Except to the extent indicated in the 2009 decision, the ALJ "incorporate[d] by reference the exhibits/testimony in the record as well as the credibility/weight given that evidence as of..." the November 18, 2005 decision. (AR. 451). In 2009, the ALJ found that through the date last insured, Plaintiff had the following severe impairments: osteoarthritis of the cervical spine; bilateral carpal tunnel syndrome; status post residuals of a benign bladder tumor removal, with temporary use of a colostomy bag; costochondritis; left eye vision problems; and a depressive disorder. (AR. 453). In finding Plaintiff was not disabled, the ALJ determined that from March 1, 2001 through August 31, 2004, Plaintiff had no documented, severe medically determinable impairments for the requisite twelve continuous months or more. (AR. 455). Thereafter, beginning on September 1, 2004 and continuing through February 28, 2005, Plaintiff "retained the residual functional capacity to perform light-level functioning on a routine and sustained basis (as provided for in 20 CFR [§] 404.1567(b)[)], able to frequently stoop, without any documented postural or environmental limitations, need to avoid wearing heavy chest garments or perform jerking motions with his head (such as using heavy equipment like a jack hammer) that would cause the body to jolt quickly)." ( Id. ). From March 1, 2005 through December 31, 2006, Plaintiff "continued to possess the light level functioning identified in the period ending on February 28, 2005, but further limited by manipulative restrictions consisting of the need to avoid repetitive use of the hands, as well as psychological based nonexertional limitations consisting of the inability to understand, remember, or carry out more than simple one/two step instructions and the inability to perform more than simple repetitive work." ( Id. ). The ALJ concluded that Plaintiff ...

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