United States District Court, D. Arizona
A. Teilrorg Senior United States District Judge
before the Court is Plaintiff Lance Nelson Goodman’s
appeal from the Social Security Commissioner’s denial
of his application for disability insurance benefits under
Title II of the Social Security Act. The Court now rules on
February 9, 2012, Plaintiff filed an application for
disability insurance benefits under Title II of the Social
Security Act, alleging that he had been unable to work since
November 30, 2010. (Tr. 145). Plaintiff’s claims were
initially denied on July 17, 2012, (Tr. 92), and upon
reconsideration on January 22, 2013, (Tr. 98). Thereafter,
Plaintiff timely requested a hearing, (Tr. 101), which was
conducted by Administrative Law Judge (“ALJ”)
Joan G. Knight on June 25, 2013 in Phoenix, Arizona, (Tr.
34). On August 30, 2013, the ALJ issued a decision finding
that Plaintiff suffered from ventricular tachycardia with ICD
implant, status post left shoulder repair of rotator cuff
tear and bicep tenosynovitis, and obesity. (Tr. 17). However,
the ALJ found that Plaintiff was not disabled under the
Social Security Act because he retained the Residual
Functional Capacity (“RFC”) to perform jobs that
exist in significant numbers in the national economy. (Tr.
26). Accordingly, the ALJ rendered an unfavorable decision
denying Plaintiff disability insurance benefits. (Tr.
Plaintiff’s request for review of this decision by the
Social Security Administration Appeals Council was denied on
March 19, 2015, (Tr. 1, 5), he commenced this action in
Federal Court on May 4, 2015, (Doc. 1). Plaintiff appeals the
final decision of the ALJ under Title 42 of the United States
Code Section 405(g), alleging “that the denial of his
disability claim is not supported by substantial
evidence[.]” (Id. at 2). In Plaintiff’s
opening brief (the “Brief”), Plaintiff argues
that the ALJ erred by: 1) improperly finding
Plaintiff’s mental impairments were non-severe,
resulting in the omission of any mental work-related
limitations from Plaintiff’s RFC; 2) making an improper
credibility finding; and 3) relying on vocational expert
(“VE”) testimony inconsistent with the
Dictionary of Occupational Titles
(“DOT”). (Doc. 14 at 3). Accordingly, Plaintiff
asks that the Court reverse the denial of his claim, and
remand for further administrative proceedings. (Doc. 1 at 2).
In opposition, Defendant filed a Response Brief contending
that “[s]ubstantial evidence supports the ALJ’s
decision that Plaintiff is not disabled under the Social
Security Act.” (Doc. 17 at 12). Accordingly, Defendant
asks that the Court “affirm the ALJ’s
was born on December 31, 1959 and lives with his wife. (Tr.
36, 198). Although he did not graduate high school, Plaintiff
does have his GED. (Tr. 36-37). Plaintiff also completed
vocational school training in auto mechanics, (Tr. 37), but
“has no further education or specialized job training[,
]” (Tr. 222). Plaintiff previously worked in masonry
since 1988, serving as a mason tender, a masonry operator,
and a laborer. (Tr. 163). However, Plaintiff contends that he
“can no longer do this type of work” because of
his medical conditions. (Tr. 174). Accordingly, Plaintiff
“has been unable to sustain gainful employment since
November 30, 2010, ” the date on which he was laid off
from his job in the construction industry. (Tr. 37, 222).
Plaintiff does not have any income, and receives
public-assistance in the form of food stamps. (Doc. 2 at
1-2). On an average day, Plaintiff watches between twelve to
fifteen hours of television, eats, goes for short walks,
plays board games, and uses his computer. (Tr. 41, 198, 316).
Plaintiff does not grocery shop or do any household chores,
(Tr. 199), but does prepare meals for himself, (Tr. 280).
Plaintiff can also drive, but “not long periods.”
(Tr. 316). Alleging that his injuries and conditions
affect “virtually every aspect” of his day,
Plaintiff relies on his wife to assist him with most tasks
and contends that he spends the majority of his time
“in the house due to limited mobility and range of
motion.” (Tr. 196). Nevertheless, Plaintiff is able to
care for his basic hygiene and bathe himself. (Tr. 41).
Plaintiff states that “he has no friends, ” and
that he tries “to refrain from seeing people.”
(Tr. 316). Now, he primarily only interacts with his wife.
Plaintiff’s Medical Background
25, 2013, Plaintiff appeared before the ALJ regarding his
alleged disability of cardiac problems, shoulder condition,
depression, and substance abuse. (Tr. 34-57). In regard to
Plaintiff’s alleged heart condition, Plaintiff was
admitted for ventricular tachycardia, due to cocaine and
alcohol abuse, in November of 2010. (Tr. 239-40). As a result
of this condition, Plaintiff had surgery to install an
implantable cardioverter defibrillator (“ICD”)
“for secondary prevention in the setting of prior
cocaine and alcohol abuse.” (Tr. 239). Plaintiff denied
“any cardiac complaints” at his follow-up in
December of 2010, (Tr. 240), and did not return for treatment
until March 2011, at which time he was readmitted to the
hospital as a result of his ICD discharging multiple times,
(Tr. 246, 253). At his follow-up appointments in April and
July of 2011, Plaintiff reported that he was doing much
better and had no further ICD discharges. (Tr. 237-38).
Although Plaintiff presented in September of 2011 with
atypical chest pain, Plaintiff’s ICD had not
discharged. (Tr. 236). In October of 2011, Plaintiff’s
stress echocardiogram indicated Plaintiff had “fair
exercise tolerance” for his age and concluded that
there was “no 2D echocardiographic evidence of
inducible ischemia to achieve workload.” (Tr. 332).
these visits, Plaintiff did not return to see a cardiologist
until July of 2012, where it was noted that Plaintiff had not
had any further ICD discharges but did have some fatigue
after eating, “likely a side effect” of his
prescribed medication. (Tr. 325). From July 2012 until the
date of his hearing in June 2013, Plaintiff did not return
for any follow up appointments with his cardiologists. (Tr.
22). However, Plaintiff did go to the emergency room
“with a complaint of a possible near syncopal
episode.” (Tr. 439). At this visit, Plaintiff refused
admission against medical advice after his “chest x-ray
revealed ‘no evidence of active pulmonary disease,
’ an EKG revealed normal sinus rhythm and no acute ST
changes were noted.” (Tr. 22) (citations omitted).
Plaintiff stated at his hearing that he has unpredictable
attacks every day, (Tr. 42), where he starts to feel dizzy
and feels blood running through his chest until the
defibrillator “settles it down[, ]” (Tr.
regard to his shoulder condition, Plaintiff had elective
arthroscopic surgery to repair his left rotator cuff in
November of 2011. (Tr. 243). At his follow up appointment in
March 2012, Plaintiff reported his symptoms were better,
rated his pain with “heavy activity” as only
1/10, and assessed his satisfaction with the surgery at 8/10.
(Tr. 458). At this time, the reviewing physician noted
Plaintiff’s shoulder was “getting better, ”
and that other than “occasional pain with heavy
activity, ” Plaintiff “is very happy.” (Tr.
458). Following this appointment, Plaintiff did not return
for any subsequent treatment until May 2013, shortly before
his hearing before the ALJ. (Tr. 457). At this visit,
Plaintiff indicated that he “fe[lt] like his symptoms
ha[d] worsened recently, ” (Tr. 457), with pain
aggravated by lifting and reaching motions, (Tr. 454).
However, a reviewing physician noted that Plaintiff’s
postoperative rotator cuff tear “appears stable.”
(Tr. 309). Plaintiff specified at the ALJ proceedings that he
now has “arthritis in [his] shoulders and [his] neck,
” and needs back surgery as a result of chronic back
pain. (Tr. 43, 307). Plaintiff was prescribed Percocet for
the joint pain in his shoulder region. (Tr. 368).
also alleges to suffer additional impairment as a result of
depression and anxiety, but has “never sought mental
health treatment” at any out-patient or in-patient
psychiatric facility. (Tr. 316). In the past,
Plaintiff’s primary care provider and cardiologists
consistently noted that Plaintiff had a “normal mood
and affect.” (Tr. 18). Although Plaintiff contends he
began to have difficulty with depression over the course of
the past few years, (Tr. 315), the ALJ indicated that he was
“never diagnosed until his primary care provider noted
that he presented with disability paperwork, ” (Tr.
18). Plaintiff attributes his depression to his medical
issues, specifically because he has been unable to work, has
gained weight as a result of his inability to do physical
activities, and because his health continues to decline. (Tr.
281). Plaintiff states he is moody and that he has
“just phased [himself] out of everything over the
years.” (Tr. 315). While Plaintiff has contemplated
suicide in the past, he has “not recently, ” nor
has he ever attempted to take his life. (Tr. 315).
Plaintiff’s primary care provider prescribed buspirone
for Plaintiff’s nerves and anxiety. (Tr. 372).
Plaintiff’s medical record illustrates that he has a
history of alcohol abuse, Plaintiff stated at the ALJ
proceedings on June 25, 2013 that he only occasionally drinks
alcohol, “not even once a month, ” due to his
high blood pressure. (Tr. 45). However, when
Plaintiff’s risk factors were reviewed at an
appointment in May of 2013, Plaintiff confirmed that he
drinks “six cans of beer” per week. (Tr. 455).
Plaintiff also has a history of cocaine, marijuana and
methamphetamine use, but contends that “his addiction
is in the past.” (Tr. 226). In regard to his cocaine
use, Plaintiff stated at the hearing before the ALJ that he
has been “clean and sober for two and a half
years.” (Tr. 44). Regarding the ALJ’s question of
whether drugs and alcohol were part of Plaintiff’s
lifestyle today, Plaintiff responded, “You
couldn’t pay me to do either one right now.” (Tr.
44). However, Plaintiff’s medical record demonstrates
that he was drinking alcohol and smoking marijuana prior to
being admitted to the hospital in March of 2011. (Tr. 62).
Further, Plaintiff’s testimony at the proceedings
before the ALJ is inconsistent with his medical record, as
illustrated by the following exchange between the ALJ and
Q: Since November 2010, have you used any other drugs not
prescribed by your doctors?
A: No ma’am, high blood pressure medicine and
Q: The records indicate, though, in March 2011, you . . .
tested positive for alcohol and marijuana. Any use of
marijuana since November 2010?
addition to the medical conditions listed above, Plaintiff
has chronic tinnitus associated with hearing loss. (Tr. 309).
However, this condition “has not been alleged to cause
any significant impairment of his ability to conduct work
activity, ” (Tr. 22), and, on physical examination,
Plaintiff’s ears were found to be “normal,
” (Tr. 232). Plaintiff has also been diagnosed as
morbidly obese. (Tr. 309).
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; it is such
“relevant evidence which a reasonable person might
accept as adequate to support a conclusion.”
Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
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;
see also Gallant v. Heckler, 753 F.2d 1450, 1453
(9th Cir. 1984) (“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.” (citation omitted)). “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.
Comm’r of 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).
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).
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).
Definition of Disability
qualify for disability benefits under the Social Security
Act, a claimant must show that, among other things, he 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
42 U.S.C. § 423(d)(2)(A).
has “a severity and durational requirement for
recognition under the [Social Security] Act that accords with
the remedial purpose of the Act.” Flaten v.
Sec’y of Health & Human Servs., 44 F.3d 1453,
1459 (9th Cir. 1995). “A claimant bears the burden of
proving that an impairment is disabling.” Matthews
v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (quoting
Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.
1985)). “The mere existence of an impairment is
insufficient proof of a disability.” Matthews,
10 F.3d at 680 (citing Sample v. Schweiker, 694 F.2d
639, 642-43 (9th Cir. 1982)). Rather, “[t]he applicant
must show that he is precluded from engaging in not only his
‘previous work, ’ but also from performing
‘any other kind of substantial gainful work’ due
to such impairment.” Id. (quoting 42 U.S.C.
Five-Step Evaluation Process
Social Security regulations set forth a five-step sequential
process for evaluating disability claims. 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:
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.
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 ...