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Goodman v. Colvin

United States District Court, D. Arizona

August 9, 2016

Lance Nelson Goodman, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          James A. Teilrorg Senior United States District Judge

         Pending 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 Plaintiff’s appeal.

         I. Background

         A. Procedural Background

         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).[1] 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. 26-27).[2]

         After 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 decision.” (Id.)

         B. Plaintiff’s Background

         Plaintiff 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).

         Currently, 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).[3] 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. (Tr. 280).

         C. Plaintiff’s Medical Background

         On June 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).

         Following 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. 47).[4]

         In 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).

         Plaintiff 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).

         While 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).[5] 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 Plaintiff:

Q: Since November 2010, have you used any other drugs not prescribed by your doctors?
A: No ma’am, high blood pressure medicine and painkillers.
Q: The records indicate, though, in March 2011, you . . . tested positive for alcohol and marijuana. Any use of marijuana since November 2010?
A: No.

(Tr. 46).

         In 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).

         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; 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. 1998).

         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; 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).

         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).

         A. Definition of Disability

         To 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 economy.

42 U.S.C. § 423(d)(2)(A).

         Disability 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. § 423(d)(2)(A)).

         B. Five-Step Evaluation Process

         The 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:

         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.

         Second, 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 ...


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