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Anderson v. Colvin

United States District Court, D. Arizona

September 30, 2014

Roger Burke Anderson, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant.


CHARLES S. RYLE, 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 (Doc. 26) ("Plaintiff's Brief"), Defendant's Opposition to Plaintiff's Opening Brief (Doc. 30) ("Defendant's Brief"), and Plaintiff's Reply (Doc. 31). For the following reasons, the Court remands this matter for further proceedings.


Plaintiff filed an application for Disability Insurance Benefits on June 10, 2010, with a protective filing date of June 8, 2010, alleging disability as of August 17, 2007, [1] due to severe cervical stenosis, severe lumbar stenosis, degenerative disc disease, hearing loss, cardiovascular disease and depression. (Administrative Record ("AR.") 127-128, 147, 151). Plaintiff was 56 years of age on the August 17, 2007 alleged disability onset date, 57 years of age on the March 1, 2008 alleged onset date as amended by Plaintiff before the Appeals Council, and 61 years of age as of the date of the Commissioner's final decision. (AR. 43, 127, 224). Plaintiff has a college education with a degree in dentistry, and past work experience for nearly thirty-one years as a dentist. (AR. 152, 168, 199).

Plaintiff's application was denied initially and on reconsideration. (AR. 98, 104). Thereafter, Plaintiff appeared without a representative and testified before the ALJ at an administrative hearing. (AR. 48-67). In addition, Plaintiff's wife and Plaintiff's friend testified as lay witnesses. (AR. at 62-66). On November 11, 2011 the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. (AR. 29-43).

Plaintiff then requested Appeals Council Review, amended his disability onset date to March 1, 2008, and submitted additional evidence which the Appeals Council made "part of the record" when making its determination to deny his request for review.[2] (AR. 1-6; see also Plaintiff's Brief, p. 3 (While before the Appeals Council, "Anderson also amended his onset date to March 1, 2008.")). Upon the Appeals Council's denial of Plaintiff's request for review, the ALJ's decision became the final decision of the Commissioner.

Plaintiff then initiated the instant action, arguing that substantial evidence did not support: (1) the ALJ's evaluation of the opinion of treating physiatrist Dr. Ostrowski; (2) the ALJ's as-generally performed step-four decision; (3) the ALJ's evaluation of Plaintiff's activities of daily living; and (4) the ALJ's evaluation of lay-witness statements. (Plaintiff's Opening Brief.)


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); 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)(citation omitted). 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. To establish disability, the claimant must show he has not worked since the alleged disability onset date (step one), he has a severe impairment (step two), and his impairment meets or equals a listed impairment (step three) or his residual functional capacity ("RFC")[3] precludes him from performing past work (step four). Where the claimant meets his 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 (step five).


The ALJ found that Plaintiff has the following severe impairments: degenerative disc disease and spinal stenosis. (AR. 34). The ALJ found that Plaintiff's impairments did not meet or equal any of the impairments found in the Listings, sections 1.04, 2.10, and 12.04. (AR. 35). The ALJ found that Plaintiff has the RFC to perform:

light work as defined in 20 CFR [§] 404.1567(b) except the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; the claimant can stand and/or walk 6 hours in an 8-hour workday, with normal breaks; the claimant can sit 6 hours in an 8-hour workday, with normal breaks; and the claimant can occasionally climb stairs and ramps, but never climb ladders, ropes, or scaffold; the claimant can occasionally stoop, kneel, crouch, and crawl; the claimant is limited to frequent ...

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