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Betancourt v. Colvin

United States District Court, D. Arizona

March 28, 2016

Jessie Marie Betancourt, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

Bernardo F Velasco United States Magistrate Judge

Plaintiff Jessie Marie Betancourt filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. The Magistrate Judge has jurisdiction over this matter pursuant to the parties’ consent. (Doc. 14). Pending before the Court are Plaintiff’s Opening Brief (Doc. 23), Defendant’s Brief (Doc. 27), and Plaintiff’s Reply Brief (Doc. 28). For the following reasons, the Court remands this matter for further proceedings consistent with this Order.

I. Procedural History

On September 14, 2011, Plaintiff protectively filed applications for disability benefits and supplemental security income under the Social Security Act. (Doc. 23, p. 2; see also Transcript/Administrative Record (Doc. 16) (“Tr.”) 23, 208-19). Plaintiff alleges that she has been unable to work since September 13, 2011 due to back and knee problems; anxiety; bipolar disorder; depression; post-traumatic stress disorder (“PTSD”); and rheumatoid arthritis. (Tr. 240). After Plaintiff’s applications were denied initially and upon reconsideration, she requested a hearing before an Administrative Law Judge (“ALJ”). (Doc. 23, p. 2). On May 21, 2013, the matter came on for hearing before ALJ Geroge W. Reyes, where Plaintiff, who was represented by counsel, and Vocational Expert (“VE”) Kathleen McAlpine testified. (Tr. 55-91). On July 26, 2013, the ALJ issued an unfavorable decision. (Tr. 23-36). The Appeals Council subsequently denied Plaintiff’s request for review, thereby rendering the ALJ’s July 26, 2013 decision the final decision of the Commissioner. (Tr. 1-6). Plaintiff then initiated the instant action.

II. Plaintiff’s Background and Statements in the Record

Plaintiff was born in December 1965. (Tr. 208). She went to school through the eighth grade. (Tr. 59). From 2000 through 2011, she worked as a home health aide. (Tr. 58-59, 248).

When Plaintiff was seven or eight years of age, she was involved in an car accident where she was ejected from a car. (Tr. 322, 604). She has had increasing discomfort since that time. (Tr. 604). From about the age of eight, Plaintiff grew up in foster care, where she was molested by her foster father when she was ten years of age. (Tr. 322). She was raped by a friend when she was fourteen years of age. (Id.). Plaintiff’s husband of 20 years verbally and physically abused her. (Tr. 322, 802).

Plaintiff testified that in the past, she used a cane on bad days, and presently she uses it all the time. (Tr. 79; see also Tr. 574 (in 2012 Plaintiff’s treating doctor ordered a cane for knee pain)). Walking, and standing and sitting too long, exacerbate her low back pain. (Tr. 84). With regard to rheumatoid arthritis, Plaintiff’s hands become achy and stiff and she can use them for about 20 minutes at a time before needing to rest. (Tr. 81-83). Emotionally, Plaintiff struggles to sleep at night and she suffers from panic attacks. (Tr. 85; see also (Tr. 256 “I toss turn all night because pain can’t get comfortable position. Worry a lot what kind future. No hope. Suicidal. Helpless….”); Tr. 563 (Plaintiff “complains of anxiety that manifests as she is falling asleep; it feels terrifying, and she awakens fully….”)). The record reflects Plaintiff’s report that she does not trust anyone. (Tr. 563).

Plaintiff’s medications include oxycodone, sulfasalazine, cyclobenzaprine, metoprolol tartrate, and paroxetine. (Tr. 292).

III. The ALJ’s Decision

A. Claim Evaluation

Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show that: (1) she has not performed substantial gainful activity since the alleged disability onset date (“Step One”); (2) she has a severe impairment(s) (“Step Two”); and (3) her impairment(s) meets or equals the listed impairment(s) (“Step Three”). “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed…, the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC)[1]….After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work…. If not, then at step five, the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Dominguez, 808 F.3d at 405.

B. The ALJ’s Findings in Pertinent Part

The ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease; status post hernia repair; gastrointestinal esophageal reflux disease (“GERD”); right knee internal derangement; affective disorder; and anxiety disorder. (Tr. 25). He found that Plaintiff’s impairments did not meet a listing. (Tr. 26).

He found that Plaintiff had the RFC to:

Occasionally lift up to 10 pounds, frequently less than 10 pounds; stand and walk 2 out of every 8 hours; sit 6 out of every 8 hours; she has no real limitations against pushing and pulling except such limits in accordance with lifting and carrying limitations; she uses a cane to ambulate; she cannot use ladders, ropes and scaffolds; cannot kneel or crouch; can occasionally use ramps or stairs or stools and occasionally balance, stoop or crawl; can attend and concentrate in two hour blocks of time throughout an 8-hour workday with the two customary breaks during the workday and the customary lunch period; should avoid concentrated exposure to extreme cold, vibrations or hazards, hazards being commonly defined as either unprotected heights or dangerous machinery. She is limited to simple, routine tasks and cannot perform such tasks in a fast-paced production environment (examples of which are a McDonald’s restaurant at noontime or the pace reflected in the famous “I Love Lucy” episodes with the chocolates on the conveyor belt whizzing by Ethel and Lucy); she is limited to only occasional interaction with supervisors, co-workers and the general public.

(Tr. 28).

Based upon the VE testimony, the ALJ found that Plaintiff was unable to perform her past relevant work as a home health aide. (Tr. 33-34). Based upon the VE testimony, the ALJ determined that Plaintiff could perform work such as an assembly production worker and electronic assembler, which exist in significant numbers in the national economy. (Tr. 34-35). Therefore, the ALJ determined that Plaintiff was not disabled under the Social Security Act from September 13, 2011 through the date of his decision. (Tr. 36).

IV. Discussion

Plaintiff argues that the ALJ erred by (1) improperly rejecting the opinion from Plaintiff’s treating doctor; (2) improperly discounting Plaintiff’s symptom testimony; and (3) failing to articulate a basis for Plaintiff’s work capacities based on substantial evidence in the record as a whole. Defendant counters that the ALJ’s decision was free of error on all matters at issue.

A. Standard

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 (9thCir. 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)).

B. The ALJ’s rejection of the treating doctor’s opinion

Plaintiff challenges the ALJ’s decision not to give controlling weight to the opinion from her treating ...


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