United States District Court, D. Arizona
Holly M. Beck, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant,
DAVID C. BURY, District Judge.
On August 18, 2014, Magistrate Judge Markovich issued a Report and Recommendation (R&R), pursuant to the Rules of Practice for the United States District Court, District of Arizona (LRCiv), Rule 72.1(a). (Doc. 19: R&R.) He recommends affirming the denial of disability benefits by an administrative law judge (ALJ). The Court does not adopt the R&R. The Court remands the case to the Social Security Commissioner for further hearing and development of the record.
STANDARD OF REVIEW
The duties of the district court, when reviewing a R&R by a Magistrate Judge, are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1).
Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.") To the extent that no objection has been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation). But even where there are no objections, the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge's conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo ); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily waive question of law, but is a factor in considering the propriety of finding waiver)).
REPORT AND RECOMMENDATION
The Magistrate Judge recommends the Court affirm the ALJ's determination that the Plaintiff was not credible, and she had the residual functional capacity (RFC) to perform sedentary work as she had performed it in her past work as a dispatcher and as performed, generally, in the national economy. Because the ALJ found she could perform her past work which was sedentary, the ALJ found she was not disabled. The Magistrate Judge found no legal error in the ALJ's credibility determination and that substantial evidence exists in the record to support the ALJ's disability decision.
By objection, the Plaintiff challenges the R&R because: 1) the Magistrate Judge recommendation affirms the ALJ's RFC that omitted Plaintiff's need for a cane; 2) the Magistrate Judge presupposed the ALJ adequately developed the record; 3) the Magistrate Judge made an error of law in assessing the duration requirement for determining disability, especially in respect to Plaintiff's assertions of disability related to severe osteoarthritis in her hips.
This Court reviews an ALJ's disability determination based only on the reasons provided by the ALJ and may not affirm the ALJ on a ground upon which he did not rely. Garrison v. Colvin, ___ F.3d ___, 2014 WL 3397218 *11 (9th Cir. July 14, 2014) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th cir. 2003). Accordingly, this Court turns directly to the ALJ's decision issued June 21, 2012. The Court recaps the record in summary fashion to reflect an overview of Plaintiff's medical conditions spanning what is approximately 5 years: 2008 through 2012.
THE ALJ'S DECISION
Plaintiff's date of last employment was December 4, 2008, the alleged onset date of disability due to breast cancer, kidney problems and a total hysterectomy. Plaintiff filed her claim of disability for both Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on October 15, 2010. She had collected unemployment benefits from her termination, December 4, 2008, to approximately October 2010. On March 23, 2011, she was initially denied disability due to breast cancer, kidney and total hysterotomy because she was found to not have a severe disability precluding her from working. She filed for reconsideration on June 30, 2011, and on September 15, 2011, she was denied disability due to these same impairments, plus bilateral hip arthritis, because she could perform sedentary work. The hearing before the ALJ was held on May 31, 2012, with the decision issued June 21, 2012. For purposes of DIB, she met the insured status requirements for receiving benefits through June 30, 2013.
Under the Social Security Act, "disability" is the inability to engage "in 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 last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A claimant "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Court has the power to enter 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). However, an ALJ's disability determination should be upheld unless it contains legal error or is not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir.2006); 42 U.S.C. §§ 405(g), 1383(c)(3). "Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.2007). The Court must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by cherry picking a quantum of supporting evidence. Id.
Of importance, here, is the ALJ's responsibility to determine credibility, resolve conflicts in medical testimony, and resolve ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). Where the evidence can reasonably support either affirming or reversing a decision, the Court may not substitute its judgment for that of the ALJ. Id. However, adjudicating social security claims diverges from the adversary model by making the ALJ responsible for developing sufficient medical evidence about an impairment to make a determination of disability. 20 C.F.R. § 416.917(a). "It is reversible error for an ALJ not to order a consultative examination when such an evaluation is necessary for him to make an informed decision." Holladay v. Bowen, 848 F.2d 1206, 1209 (9th Cir. 1988) (quoting Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984) (further citations omitted). With these standards in mind the Court turns to the reasons provided by the ALJ in the disability determination.
At step one of the five-step disability determination, the ALJ concluded the Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability in 2008. At step two, the ALJ concluded that Plaintiff established that her obesity, diabetes; hypertension; Meniere's disease; osteoarthritis, and asthma were all severe impairments because these impairments result in more than a minimal impact on her ability to perform basic work activities. The ALJ recognized that because Plaintiff had a severe medically determinable impairment, "all medically determinable impairments must be considered in the remaining steps of the sequential analysis." See 42 U.S.C. § 423(d)(2)(B). These included: history of breast cancer, left-sided sensorineural hearing loss, post-hernia surgery and chronic Stage III kidney disease. (P's Opening Brief (Doc. 13) at 6.) At step three, the ALJ concluded that none of Plaintiff's impairments met or equaled a listed impairment which would require an ...