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Schwab v. Colvin

United States District Court, D. Arizona

August 8, 2016

Kimberly Lynn Schwab, Plaintiff,
v.
Carolyn W Colvin, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff Kimberly Lynn Schwab’s appeal from the Social Security Commissioner (the “Commissioner”)’s denial of her application for a period of disability, disability insurance payments, and supplemental security income. (Doc. 1). Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in finding that Plaintiff was not a credible witness, and by failing to properly weigh the medical evidence that was before her. (Doc. 11). The Court now rules on Plaintiff’s appeal.

         I. Background

         Plaintiff was born in June of 1977, and holds at least a high school education. (Doc. 10-3 at 39). In May of 2010, Plaintiff injured her lower back at work while attempting to lift a table, (id. at 31), and was subject to coverage by workers compensation. (Id. at 51). By July 2010, Plaintiff “returned to full-time work in a sedentary supervisory position, ” (id. at 37), and was working with the Childrens’ Center, but “had difficulty maintaining that work.” (Id. at 52). By mid-2011, her symptoms had worsened, (id.), and Plaintiff has not engaged in substantial gainful activity-including employment-since May 17, 2011. (Id. at 28).

         Plaintiff met numerous times with Jeffrey Scott, M.D., the “physician assigned to [Plaintiff] through her worker’s compensation claim.” (Doc. 10-3 at 36). Dr. Scott opined “on multiple occasions that [Plaintiff] is unable to sustain full time employment on a regular and continuous basis, ” and that she would require numerous work-related restrictions. (Id.). Following an MRI in July 2011, and in light of Plaintiff’s unimproved status, Dr. Scott echoed an earlier medical recommendation from another doctor that Plaintiff turn to surgery to treat her lower back. (Tr. 610).[1] In October 2011, Plaintiff underwent “percutaneous transforaminal endoscopic discectomy with closure of the annular tear at ¶ 4-5 and L5-S1, ” (Doc. 10-3 at 28), and was unable to work until at least December 2011. (Id. at 36). Plaintiff’s condition did not improve post-surgery, however, and Dr. Scott recommended epidural injections coupled with opioid treatment for the pain. (Tr. at 600, 602).

         In January 2012, Plaintiff met with Mark Binette, M.D., for a “consultative examination at the request of the State agency.”[2] (Doc. 10-3 at 34). Dr. Binette diagnosed back pain, and “opined [that] there were no conditions that would impose any limitations for 12 continuous months.” (Id.). Plaintiff thereafter met with Monte Jones, M.D., in September 2012, who diagnosed Plaintiff with back pain, a history of lumbar spine surgery, and depression. (Id.). The record indicates that Plaintiff continued to meet with medical professionals due to her lower back injury, including Barton W. Butterbaugh, M.D., for symptoms of insomnia and continued back pain, as well as the Desert Institute for Spinal Care. (Tr. 552-53, 575-580, 666-670).

         Plaintiff also underwent a psychological evaluation in October 2012, when she met with Alexander Piatka, Ph.D. (Doc. 10-3 at 34). Dr. Piatka diagnosed Plaintiff with “depressive disorder” and opined that Plaintiff’s “symptoms appeared moderate in severity.” (Id.). Plaintiff’s psychological treatment continued in July 2013 when she met with Shannon Tromp, Ph.D., for evaluation. (Id. at 35). Plaintiff was subjected to a “mini mental status exam” and “scored 30 out of 30.” (Id.). Dr. Tromp opined that Plaintiff would have difficulty with “sustained concentration due to pain” and “would miss more than [three] days per month as a result of her pain and pain disorder, ” but noted “no specific work limitations.” (Id.). Nurse practitioner Judith Hahn “submitted a statement” in regards to Plaintiff’s psychological condition, and opined that Plaintiff suffered from “mild to moderate limitations of functioning, ” as Plaintiff struggled with “simple decision making, ” “anxiety, ” and “difficulty in social settings, ” but could return to a “low-stress” job and would likely miss “2-3 days of work per month.” (Id. at 37-38). Ultimately, Plaintiff was diagnosed with the “severe impairments” of “depressive disorder, ” “anxiety disorder, ” and “opiate dependency.” (Id. at 28). Licensed counselor Gabriella Montgomery also submitted an opinion as to Plaintiff’s mental well-being, opining that there were “marked limitations” to Plaintiff’s cognitive and social abilities, such as concentration, punctuality, maintaining regular attendance, and maintaining an uninterrupted work schedule. (Id. at 38).

         Plaintiff testified that she is still in pain throughout the day, ranging from mild to severe, and that she still has difficulty walking, sitting, and standing. (Tr. 57, 63). As of April 2013, Plaintiff was living with a family friend, and tries to spend time outside of the house at least once a week. (Id. at 63).

         On September 26, 2011, Plaintiff filed an application for a period of disability and disability insurance benefits. (Doc. 10-3 at 26). Plaintiff thereafter sought supplemental security income on November 1, 2011. (Id.). Plaintiff’s claims were initially denied on February 7, 2012. (Id.). Plaintiff timely requested a hearing, which was conducted by ALJ Patricia A. Bucci on April 4, 2013, and a supplemental hearing was held on August 9, 2013, in Phoenix, Arizona. (Id.). On September 3, 2013, the ALJ issued an unfavorable decision, and affirmed the decision upon reconsideration on October 17, 2012. (Id.). After Plaintiff’s request for review by the Social Security Administration Appeals Council was denied on April 14, 2015, she commenced this action in federal court on June 12, 2015. (Doc. 1).

         II. Legal Standard

         The ALJ’s decision to deny benefits will be overturned “only if it is not supported by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         “The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether there is substantial evidence to support a decision, the Court considers the record as a whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. Commr of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact 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 v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the Commissioner’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         Notably, the Court is not charged with reviewing the evidence and making its own judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is constrained to the reasons asserted by the ALJ and the evidence relied upon in support of those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). On appeal, “issues which are not specifically and distinctly argued and raised in a party’s opening brief are waived.” Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing Barnett v. U.S. Air., Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) (en banc)); Bray v. Commr of Soc. Sec., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (applying the principle to an appeal from a denial of benefits by the Social Security Commissioner). The Ninth Circuit’s reasoning is that courts “will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.” Id. (citation omitted).

         A. Definition of Disability

         To qualify for disability benefits under the Social Security Act, a claimant must show that, among other things, she is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         A person is “under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

         B. The Five-Step Evaluation Process

         To evaluate a claim of disability, the Social Security regulations set forth a five-step sequential process. 20 C.F.R. § 404.1520(a)(4); see also Reddick, 157 F.3d at 721. A finding of “not disabled” at any step in the sequential process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the first four steps, but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. The five steps are as follows:

         1. First, the ALJ determines whether the claimant is “doing substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.

         2. If the claimant is not gainfully employed, the ALJ next determines whether the claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly limit[] [the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work activities are the “abilities and aptitudes to do most jobs, ” such as lifting, carrying, reaching, understanding, carrying out and remembering simple instructions, responding appropriately to co-workers, and dealing with changes in routine. 20 C.F.R. § 404.1521(b). Further, the impairment must either have lasted for “a continuous period of at least twelve months, ” be expected to last for such a period, or be expected “to result in death.” 20 C.F.R. § 404.1509 (incorporated by reference in 20 C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If the claimant does not have a severe impairment, then the claimant is not disabled.

         3. Having found a severe impairment, the ALJ next determines whether the impairment “meets or equals” one of the impairments listed in the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not, before proceeding to the next step, the ALJ will make a finding regarding the claimant’s “residual functional capacity based on all the relevant medical and other evidence in [the] case record.” 20 C.F.R. § 404.1520(e). A claimant’s “residual functional capacity” (“RFC”) is the most he can still do despite all his impairments, including those that are not severe, and any related symptoms. 20 C.F.R. § 404.1545(a)(1).

         4. At step four, the ALJ determines whether, despite the impairments, the claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination, the ALJ compares its “residual functional capacity assessment . . . with the physical and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. § 404.1520(f). If the claimant can still perform the kind of work he previously did, the claimant is not disabled. Otherwise, the ALJ proceeds to the final step.

         5. At the final step, the ALJ determines whether the claimant “can make an adjustment to other work” that exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant’s “residual functional capacity” and his “age, education, and work experience.” 20 C.F.R. § 404.1520(g)(1). If the claimant can perform other work, he is not disabled. If the claimant cannot perform other work, he will be found disabled.

         In evaluating the claimant’s disability under this five-step process, the ALJ must consider all evidence in the case record. See 20 C.F.R. § 404.1520(a)(3); 20 C.F.R. § 404.1520b. This includes medical opinions, records, self-reported symptoms, and third-party reporting. See 20 C.F.R. § 404.1527; 20 C.F.R. § 404.1529; SSR 06-3p, 71 Fed. Reg. 45593-03.

         C. The ALJ’s Evaluation Under the Five-Step Process

         The ALJ found that Plaintiff had not engaged in substantial gainful activity since May 17, 2011, and that she possessed a number of severe impairments, [3] satisfying the first and second steps of the inquiry. (Doc. 10-3 at 28-29). At step three, the ALJ found that Plaintiff’s impairment or combination of impairments did not meet or medically equal any of the listed impairments in the Social Security regulations that automatically result in a finding of disability. (Id.).

         Prior to moving on to step four, the ALJ conducted an RFC determination in light of proffered testimony and objective medical evidence. (Doc. 10-3 at 30-39). The ALJ found that Plaintiff “has the residual capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except [Plaintiff] should never climb ladders, ropes, and scaffolds, ” and she “should avoid concentrated exposure to dangerous [items] with moving mechanical parts and unprotected heights.” (Id. at 30). The ALJ further found that Plaintiff “retains the ability to perform unskilled to semi-skilled tasks with only occasional interaction with the public, co-workers, and supervisors.” (Id.). At step four, the ALJ found that Plaintiff was “unable to perform past relevant work.” (Id. at 39).

         Finally, the ALJ determined at step five that based on Plaintiff’s age, education, work experience, and RFC, Plaintiff could perform significant numbers of jobs existing in the national economy. (Doc. 10-3 at 39.). Consequently, the ALJ found that Plaintiff was not disabled under the Social Security Act.

         III. Analysis

         Plaintiff makes two arguments in support of her contention that the Court should set aside the ALJ’s decision. Specifically, Plaintiff asserts that the ALJ erred in (1) finding that Plaintiff was not entirely credible as a witness, and (2) by ...


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