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Heisser v. Colvin

United States District Court, D. Arizona

April 21, 2016

Mary Ellen Heisser, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


Neil V. Wake United States District Judge

Plaintiff Mary Ellen Heisser seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied her disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based on legal error, the Commissioner’s decision will be affirmed.


Plaintiff was born in January 1955. She graduated from Northern Arizona University with a bachelor’s degree in 1977. She worked for the Arizona Child Protective Service from September 1988 until May 2007, when she stopped working to care for her then-90 year old father. On August 8, 2011, Plaintiff applied for disability insurance benefits, alleging disability beginning January 1, 2010. On the application Plaintiff also indicated that although she stopped working for other reasons, she believed that as of January 1, 2008, her conditions became severe enough to keep her from working. She alleged numerous impairments, including back injury, left ankle and foot injuries, fibromyalgia, diabetes, obstructive sleep apnea, two episodes of renal failure, ulcerative colitis, and chronic low iron. At the time of her application, Plaintiff reported her height as 5’6” and weight as 210 pounds.

On October 7, 2011, Plaintiff reported that she was able to prepare meals, do laundry, care for her 94-year-old father, care for her dog and birds, drive, use a computer, crochet, do needlework, watch television, and shop for food, clothes, and gifts. She reported having no problems with personal care. She also reported that she went to church at least once a week, played bingo once a week, and attended church meetings two to five times a month. She said that she fully participated in all activities. Plaintiff said that she did not sleep well because of obstructive sleep apnea and took naps almost every day. She also reported that she often woke up feeling stiff and sore because of her fibromyalgia, and two or three times a week she needed to take a pain pill as soon as she woke up. On other days, she usually took at least one pain pill later in the day. She reported having suffered multiple injuries and surgeries to her left ankle and foot, including breaking the fifth metatarsal on her left foot three times in 2009. She also reported she had lumbar spondylosis causing difficulty walking, back pain that prevented sitting more than 30 minutes, and constant pain in her left hip and thigh area, which affected sitting, standing, walking, and laying down. Plaintiff said she drove 250 miles for a day trip to the mountains, and the next day her back hurt so much she could barely move. She said she had trouble lifting anything weighing more than about a pound. When she shopped at several stores in a mall, she had to stop several times to rest; if she had several packages, she took them to her car before finishing shopping because she could not carry much.

From April 2009 through January 2012, Plaintiff received physical therapy for lower back, hip, ankle, and/or foot pain. She usually reported chronic pain, but the severity varied. In November 2011, Plaintiff reported foot, back, and fibromyalgia pain, but said that the day before she had gone to the grocery store and then stood in the kitchen for three hours baking. In January 2012, Plaintiff reported her back began hurting more after going to a movie and that she used to work out at the gym three or four days a week, but had not gone in several months.

In January 2012, Plaintiff told the State agency psychological examiner that she enjoyed reading three or four books a month, doing needlework, and playing bingo. She went out to dinner one to three times a week and took her father out to breakfast on Sundays after church. She attended physical therapy three times a week. She had just completed a seven-week dog training course and enjoyed taking her dog on walks several times a week. She played with her birds and cleaned the bird cage weekly. She played computer games frequently and took her father to the movies one to three times a month. She went to church meetings two or three evenings a month. Plaintiff reported that her memory and concentration were good, and she denied having comprehension problems. The psychologist noted she had good recall of dates and events, and questions did not need to be repeated or explained. The psychologist did not observe any pain behavior or difficulty moving from sitting to standing and vice versa.

On April 8, 2013, Plaintiff appeared with her attorney and testified at a hearing before the ALJ. A vocational expert also testified. Plaintiff’s attorney told the ALJ that the primary reason for Plaintiff’s disability claim “is the chronic problem she’s had with her left ankle/left foot.” Plaintiff’s attorney also told the ALJ that Plaintiff’s alleged disability onset date should be January 1, 2008, because she reported that as the date on which her medical conditions became severe enough to keep her from working. The ALJ stated that Plaintiff’s application said January 1, 2010, and asked whether Plaintiff wanted to amend the alleged onset date to January 1, 2008. Plaintiff’s counsel responded, “Correct, ” and said he had explained to Plaintiff that it would not affect any back benefits because she did not apply until 2011, but “it would potentially fill in a couple of extra years of . . . zero earnings.”[1]

During the hearing before the ALJ, Plaintiff testified that she quit working to care for her father in July 2007, and in November 2007 she initially hurt her ankle. Until September 2012, when her father began to receive assistance from care givers, Plaintiff regularly prepared all of her father’s meals and did his laundry and grocery shopping, but he was able to bathe and dress himself. She said she used a scooter at the grocery store after her surgeries and “a few other times.” Plaintiff testified that she was in charge of funeral brunches for her parish, so she set things up, served food, and cleaned up at “a dozen plus” funeral brunches in the two years before the April 2013 hearing. Sometimes she was responsible for putting together meat and cheese trays, which involved shopping, putting the food on trays, and making sure the rolls were cut and put on serving trays. She also helped serve food at the women’s group meetings two or three times a year. When Plaintiff’s attorney asked her why she was not able to work full-time if she was able to do these things, she responded, “I have a very high tolerance for pain, and I have had a lot of pain through my life, and I try not to whine about it, and I work through it.” Plaintiff said that after a big funeral brunch, she may not be able to move for a couple days. Plaintiff also testified that she played bingo weekly for about four to four and a half hours with a ten-minute intermission.

On May 7, 2013, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s decision the Commissioner’s final decision. On January 26, 2015, Plaintiff sought review by this Court.


The district court reviews only those issues raised by the party challenging the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted); accord Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings if they are supported by inferences reasonably drawn from the record.”). “Overall, the standard of review is highly deferential.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015).


To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. ยง 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner ...

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