United States District Court, D. Arizona
Patricia H. Cavanaugh, Plaintiff,
Carolyn W. Colvin, Defendant.
REPORT AND RECOMMENDATION
D. THOMAS FERRARO, Magistrate Judge.
Plaintiff Patricia Cavanaugh brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Cavanaugh filed her opening brief, seeking a remand for further proceedings. (Doc. 19.) The Commissioner filed an opposition and Cavanaugh filed a reply. (Docs. 21, 22.) Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
Cavanaugh filed an application for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on June 29, 2010. (Administrative Record (AR) 175, 177.) Cavanaugh was born on July 29, 1954, making her 55 years of age at the time she applied for disability. (AR 175.) She alleged disability from June 1, 2008. ( Id. ) Cavanaugh's application was denied upon initial review (AR 104-11) and on reconsideration (AR 113-18). A hearing was held on April 13, 2012. (AR 51-76.) ALJ Peter J. Baum found that Cavanaugh had severe impairments of depressive disorder and anxiety disorder but, at Step Five, he concluded Cavanaugh was not disabled. (AR 21-32.) The Appeals Council considered additional evidence but denied Cavanaugh's request to review the ALJ's decision. (AR 2-5.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
Cavanaugh argues the ALJ committed two errors: (1) the ALJ's RFC failed to account for Cavanaugh's moderate difficulties in maintaining concentration, persistence and pace; and (2) the ALJ was required to obtain vocational expert testimony at Step Five, in light of Cavanaugh's moderate difficulties in maintaining concentration, persistence and pace. The questions presented in this case are narrow and primarily legal.
The ALJ's Decision
At Step Three, the ALJ concluded that Cavanaugh did not satisfy the "paragraph B" criteria but found she had moderate limitations with regard to concentration, persistence, or pace. (AR 24.) Before moving to the next step of the analysis, the ALJ stated "the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the "paragraph B" mental function analysis. (AR 25.) The ALJ then found that Cavanaugh's RFC allowed her to perform at all exertional levels but she had one non-exertional limitation, she was limited to unskilled work. ( Id. ) After finding that Cavanaugh could not perform her past relevant work, the ALJ found her not disabled at Step Five based on the Medical-Vocational Guidelines. (AR 30, 31.)
In reaching these determinations, the ALJ gave significant weight to psychologist Noelle Rohen, who examined Cavanaugh. (AR 28.) Dr. Rohen concluded that Cavanaugh's ability to remember and carry out instructions, and her ability to interact with others and respond to changes in the work setting were not affected by her impairments. (AR 729-30.) However, Dr. Rohen stated that Cavanaugh's impairments did impact her speed of processing and stamina/fatigue. ( Id. )
Residual Functional Capacity
Cavanaugh argues that the ALJ erred in finding that she had moderate limitations in concentration, persistence or pace but not including that limitation in her RFC. Further, she contends that limiting her to ...