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Davis v. Colvin

United States District Court, D. Arizona

September 30, 2015

Emma Josephine Davis, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Defendant.


CHARLES R. PYLE, Magistrate Judge.

Plaintiff Emma Josephine Davis 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. (Doc. 9). Pending before the Court are Plaintiff's Opening Brief (Doc. 19) ("Plaintiff's Brief"), Defendant's Memorandum in Support of the Commissioner's Decision (Doc. 24), and Plaintiff's Reply (Doc. 26). For the following reasons, the Court remands this matter for an immediate award of benefits.


Davis, who was born on October 13, 1959, applied for disability insurance benefits in February 2010, alleging that since April 7, 2008 she has been unable to work due to ulcerative colitis, fibromyalgia, osteoarthritis, depression, and anxiety. (Administrative Record ("AR.") 167-170, 177, 224). Davis has a high school equivalency degree. (AR. 21, 80). From 1998 through May 2008, she worked in retail as cashier/customer service clerk, and during 2000 to 2004, she also worked as a mentor at a residential facility for the disabled where she cooked, cleaned, administered medications and took residents to doctors' appointments. (AR. 48, 180).

At the time of the hearing before the ALJ, Plaintiff lived with her husband, her daughter, and two grandchildren who are 9 and 12 years of age. (AR. 75). Plaintiff testified that she has ulcerative colitis, depression, anxiety, difficulty concentrating, headaches, dizziness, deafness in her left ear, arthritis and fibromyalgia. (AR. 43-45, 56, 67). She experiences pain in her legs, knees, back, fingers, elbow, left ear, and head. (AR. 56). Injections, radio frequency ablation, facet blocks, and use of a TENS unit have provided only temporary relief for her pain. (AR. 56-58). She also testified that her ulcerative colitis is under control with medications, but she does experience "a flew flare-ups... once or twice every month." (AR. 52 (the flare ups last about 20 to 30 minutes)). Plaintiff's depression causes her to sleep most of the day and she spends most of the day in bed. (AR. 67-69; see also AR. 67 ("I wake-every four hours... [to] go to the bathroom.")). On days she feels better, she will sit outside or in the living room. (AR. 69). Plaintiff has crying spells every other day and suffers from anxiety on a daily basis that makes her feel "[l]ike I want to jump out of my skin." (AR. 71-72). During panic attacks, which she has every two months or so and which last about ten to fifteen minutes, she shakes and her heart races. ( Id. ). Plaintiff does not drive and she stopped going to church in approximately December 2011. (AR. 73).

Plaintiff's application was denied on initial review and again on reconsideration, after which Plaintiff requested that her claim proceed to hearing before an administrative law judge. (AR. 115-123, 155). A hearing was held on February 27, 2012 before Administrative Law Judge George W. Reyes ("ALJ") at which Davis, who was represented by counsel, and vocational expert Ruth Van Vleet ("VE") testified. (AR. 39-91). On April 12, 2012, the ALJ issued his decision finding Plaintiff was not disabled under the Social Security Act. (Tr. 22-32). Thereafter, the Appeals Council denied Plaintiff's request for review, thus rendering the ALJ's April 12, 2012 Decision the final decision of the Commissioner. (Tr. 1-6).

Davis then initiated the instant action, arguing that: (1) the ALJ erred by rejecting the assessments of her treating physician, Yuhee Kim, M.D.,; (2) the ALJ erred by rejecting the assessment of her treating psychiatric nurse practitioner, Judy Hileman, N.P.; (3) the ALJ erred in rejecting her symptom testimony; and (4) the ALJ erred by determining that her work capacities without support by substantial evidence of record. (Plaintiff's Brief, p. 1).

Defendant contends that the ALJ's decision is supported by substantial evidence of record.


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); see also Brown-Hunter v. Colvin, ___ F.3d ___, 2015 WL 4620123, *4 (9th Cir. Aug. 4, 2015).

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. See 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show: (1) she has not worked since the alleged disability onset date ("Step One"); (2) she has a severe impairment ("Step Two"); and (3) her impairment meets or equals a listed impairment ("Step Three") or her residual functional capacity ("RFC") precludes the performance of her past work ("Step Four"). At step five, the Commissioner must show that the claimant is able to perform other work.


The ALJ determined that Plaintiff had not engaged in substantial gainful employment during the period from her alleged onset date of April 7, 2008 through her date last insured of December 31, 2011. (AR. 24). The ALJ found that Plaintiff suffered from the following severe impairments: ulcerative colitis, fibromyalgia, osteoarthritis, depression, and anxiety. ( Id. ). The ALJ went on to find that although Davis could not perform her past relevant work (AR. 31), she was capable of:

Perform[ing] light work as defined in 20 CFR § 404.1567(b) except that she is precluded from using ladders, ropes, and scaffolds; is also limited to only occasionally using ramps and stairs; and is further limited to only occasional balancing, kneeling stooping, crouching and crawling. She must avoid concentrated exposure to hazards, commonly defined as dangerous machinery or unprotected heights. She is further limited to tasks that are not performed in a fast-paced production environment; and furthermore, is limited to only occasional interactions with supervisors, coworkers, and the general public. Finally, she can ...

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