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Dominguez v. Colvin

United States District Court, D. Arizona

September 30, 2014

Adam Dominguez, 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. 16), Defendant's Opposition to Plaintiff's Opening Brief ("Defendant's Brief") (Doc. 19), and Plaintiff's Reply (Doc. 20). For the following reasons, the Court remands this matter for an immediate calculation and award of benefits.


Plaintiff was born on January 7, 1978. (Administrative Record ("AR."), 8). In 1993, when Plaintiff was 15 years of age, he attempted suicide by shooting himself in the head. (AR. 146, 823; see also AR. 685 (CT scan reflects "residual fragment in the right frontal lobe."); AR. 817 ("the bullet remains in his skull.")). Since that incident, Plaintiff completed high school at 20 years of age and after having been placed in special education courses. (AR. 21, 87, 468, 479, 511; see also AR. 817 ("he was placed in special education after his gunshot.")).

Plaintiff last worked as a stocker at a Walmart Store from 1999 until 2006. (AR. 69, 84, 106-07). Prior to that, he worked as a cook from 1997 until 1998. (AR. 60, 84). Plaintiff is right-hand dominant. (AR. 21).

In October 2006, Plaintiff filed an applications for disability insurance benefits and supplemental security income alleging inability to work since October 24, 2006 due to: "lots of headaches, left arm/hand gets tired easy, back always hurts, left side disabled.[.] In 1993 [I] was shot in the head, [I] did get [SSI] for a while, but then got a job, for me the job got harder over the years. I was gettin[g] tired of the hard work [I] was going through daily. Partial paralysis on right side/arm." (AR. 53-68, 83). After Plaintiff's applications were denied initially and on reconsideration, he appeared unrepresented for a hearing before Administrative Law Judge ("ALJ") Normal Buls, and the ALJ subsequently issued a decision in January 2009 ("the 2009 Decision") finding Plaintiff was not disabled because although he could not do his past work, he could perform other work. (AR. 6-16, 17-27, 28-25, 37-43). Plaintiff ultimately appealed the ALJ's decision to the District Court for the District of Arizona, and the Court, upon stipulation of the parties, remanded the matter for further proceedings.[1] (AR. 530-31). On remand, two hearings were held and Plaintiff, who was represented by counsel, testified at both. (AR. 464-66 (July 6, 2011); 500-18 (May 24, 2011)). Additionally, Vocational Expert ("VE") Kathleen McAlpine also testified at the July 6, 2011 hearing. On August 18, 2011, the ALJ issued his decision denying benefits. (AR. 391-77). On September 10, 2012, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (AR. 183).

Plaintiff then filed the instant action raising the following grounds: (1) the ALJ improperly evaluated opinions from Dr. Petronella, the examining neurologist; (2) the ALJ improperly evaluated opinions form examining physician Dr. Hassman; (3) the ALJ's hypothetical question was not accurate; (4) the ALJ failed to comply with Social Security Ruling ("SSR") 00-4p; (5) substantial evidence did not support the ALJ's credibility finding; (6) substantial evidence did not support the ALJ's evaluation of Plaintiff's education; and (7) substantial evidence did not support the ALJ's evaluation of vocational evaluator Weaver's report.


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")[2] precludes him from performing past work. Where the claimant meets his burden, the analysis progresses to step five 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.

SUMMARY OF THE ALJ'S PERTINENT FINDINGS. Except to the extent indicated in the 2011Decision, the ALJ "incorporate[d] by reference the exhibits/testimony in the record as well as the credibility/weight given that evidence as of..." his earlier 2009 Decision. (AR. 389).

In 2011, the ALJ found that Plaintiff "has the following impairments: headache; weakness of the left upper extremity secondary to gunshot wound to the right side of the head; back disorder; affective disorder; and generalized anxiety disorder...." (AR. 391). The ALJ determined that Plaintiff had the RFC to perform the full rage of light work as defined in 20 C.F.R. §§404.1567(a) and 416.967(a) subject to the following:

He is restricted from handling, fingering and feeling with the left upper extremity, although he testified that he could move the left arm, bend the left arm at the wrist, use the left arm as a guide for the right arm and extend the fingers occasionally. He is right-hand dominant, and has no restrictions with using the right upper extremity. He has no restrictions with sitting, standing or walking. He does not require an assistive device. He has no restrictions with seeing, hearing and speaking. He is restricted from climbing ladder/rope/scaffolds due to left hemi-paresis. He can occasionally climb ramp/stairs, kneel, crouch and crawl, and has no limitations with stooping. He should avoid working at unprotected heights due to left hemi-paresis. Due to his mental impairment, the claimant can perform simple repetitive unskilled work. He can respond appropriately to supervision, coworkers and usual work situations; deal with changes in a routine work setting; and sustain the pace and concentration required in an ordinary work setting on a reasonably sustained basis.

(AR. 393). Relying on the Medical Vocational Guidelines ("Grids") as a "framework" with VE testimony that Plaintiff could work as a janitor/housekeeper, usher/ticket taker, and escort, the ALJ decided that Plaintiff was not disabled from ...

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