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Fowler v. Colvin

United States District Court, D. Arizona

September 29, 2015

William S. Fowler, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, 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 (Doc. 19) ("Plaintiff's Brief") and Defendant's Response Brief (Doc. 20) ("Defendant's Brief"). For the following reasons, the Court remands this matter further proceedings.


Plaintiff was 46 years of age on the July 1, 2010 alleged disability onset date, and remains insured under the terms of the Social Security Act through December 31, 2015. (Administrative Record ("AR.") 76; Doc. 19, p. 1) Plaintiff has a bachelor's degree in accounting and worked in the past as a financial advisor, farm manager and bookkeeper. (AR. 83; Doc. 19, p. 3)

On February 8, 2011, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), and an application for Supplemental Security Income ("SSI") under 42 U.S.C. § 1381(a), alleging disability since July 1, 2010, due to bi-polar disorder and manic depression. (AR. 197-198, 199-205) The application was denied initially and upon reconsideration. (AR. 74-95, 139-146) Plaintiff appeared with counsel and testified before an Administrative Law Judge ("ALJ") at an administrative hearing on December 11, 2012. (AR. 32-73) At the hearing before the ALJ, Plaintiff testified that he previously abused alcohol, but entered a treatment facility and has not consumed alcohol since October 2010. (AR. 40-41) Plaintiff previously abused the prescription drug Ambien, but stopped using it in January 2011 when Plaintiff was treated and released from St. Joseph's Hospital after he crushed and snorted Ambien. (AR. 42, 52, 546) Plaintiff also testified that he has used illegal drugs in the past, mostly marijuana because it helped him sleep during manic episodes, and ceased using marijuana in November 2010. (AR 43-45, 52-53) Plaintiff testified that he has not overused prescription pain medication in any meaningful way. (AR. 45-46) In the summer of 2010, Plaintiff was arrested three times in a three week period. (AR. 47) The first time he was arrested, he was charged with taking down political signs and was put through the mental health court program and required to enroll in La Frontera's seriously mentally ill ("SMI") program. (AR. 47-48) Plaintiff indicated that he was arrested twice more for domestic violence incidents and ultimately sentenced to diversion. (AR. 48-49) After quitting his job in June of 2010, Plaintiff testified that he followed a music band around the country attending their concerts for a month or a month and a half. (AR. 49-50) He spent some time in California where he was prescribed a medical marijuana card. (AR. 50) Plaintiff drives, but not for long distances and not often because his medication has, for approximately 18 months, made him "bump into things." (AR. 51)

Plaintiff testified that even with his medication, he is very lethargic and suffers problems with sleep, concentration and memory. (AR. 58) When depressed, Plaintiff withdraws, remaining in his room sleeping, not able to go out and do things or engage in conversation with his wife. (AR. 60) During manic episodes, Plaintiff stated that he would not sleep, that he would hike or garden excessively, sometimes talking to himself, and that he gets extremely irritable. (AR. 60-61) Plaintiff testified that since becoming sober, his symptoms have become worse in some sense because of the side effects of the medications he is prescribed. (AR. 63) As side effects to his medication, Plaintiff lists weight gain, disturbed sleep, depression, shaky hands, problems with memory and concentration, and a desire to be alone. (AR. 63) While he has not suffered any manic episodes since being medicated, Plaintiff states that he has been in a prolonged state of depression. (AR. 64)

A vocational expert ("VE") testified that Plaintiff would not be able to perform at any of his past relevant work, even if limited to simple routine tasks, because the work has all been complex and skilled. (AR. 65) The ALJ posed the following hypothetical limitations to the VE: capable of medium level work, cannot climb ladders ropes or scaffolds; can frequently use ramps, stairs or stools; limited to simple, routine tasks but cannot do such tasks in a fast-paced production environment, can occasionally interact with supervisors and co-workers and is further limited to only brief, intermittent and superficial public contact; can attend and concentrate for two hours, then needs to take a 10 to 15 minute break, attend and concentrate for two more hours, then needs to take a 30 to 60 minute lunch, can then attend and concentrate for another two hours, needs to take another 10 to 15 minute break before he can attend and concentrate for two more hours. (AR. 65-66)

The VE attested that a hypothetical individual would be able to perform the work of a landscape specialist, an auto detailer, or a lot attendant, all three being medium, unskilled jobs. (AR. 67) The VE testified that the DOT definitions for these three positions do not account for dealing with supervisors, co-workers and the public but do address dealing with people beyond giving and receiving instructions. (AR. 67) According to the VE, an individual would be unable to maintain employment if they cannot attend and concentrate in two hour blocks of time throughout an eight hour work day. (AR. 68)

After testimony was completed, the ALJ and Plaintiff's counsel discussed the missing records from Plaintiff's treating psychiatrist, Dr. Tena Moyer. The ALJ asked Plaintiff's counsel to "make a good try" with Dr. Moyer to obtain the missing medical records. (AR. 69) In the event that counsel was unsuccessful, the ALJ indicated that he would send a letter asking the doctor to provide the records. (AR. 69, 70) He was less inclined to issue a subpoena. (AR. 69) The ALJ reiterated the need for Dr. Moyer's records because "she[] made a very compelling medical source statement, but I don't have any backup." (AR. 70)

The ALJ issued a decision on March 1, 2013, finding Plaintiff not disabled within the meaning of the Social Security Act. (AR. 14-25) This decision became the Commissioner's final decision when the Appeals Council denied review. (AR 1-4). Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 19)


Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir.1989). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir.1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir.1980)).

It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir.1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting ...

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