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White v. Colvin

United States District Court, D. Arizona

September 29, 2016

Vickie White, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge.

         Plaintiff Vickie White seeks review of the Social Security Administration Commissioner's decision denying her social security benefits under the Social Security Act. (Doc. 1; Doc. 22.) For reasons below, the Court will affirm the Commissioner's decision.

         I. Background

         On August 24, 2009, Plaintiff filed an application for supplemental security income benefits under Title XVI of the Social Security Act. (AR[1] 245-48.) Plaintiff asserts disability beginning on October 27, 1982. (Id. at 245.) Plaintiff's application was initially denied on December 18, 2009, and upon reconsideration on July 22, 2010. (Id. at 132-35, 140-43.) Plaintiff requested a hearing, and a hearing was held on February 28, 2012. (Id. at 110.) In a decision dated March 13, 2012, Administrative Law Judge Patricia A. Bucci (ALJ) denied Plaintiff's request for benefits. (Id. at 121.)

         On July 19, 2013, after review, the Appeals Council vacated the ALJ's decision and sent the matter back to the ALJ for additional proceedings. (Id. at 127-30.) The Appeals Council found the following deficiencies in the ALJ's decision:

1. It contained “no assessment of whether obstructive sleep apnea, major depression with psychosis, and rheumatoid arthritis constitute severe impairments, although these have all been diagnosed by treating sources during the period at issue”;
2. “The record is unclear about whether [Plaintiff] is illiterate”;
3. “As [Plaintiff] is limited to routine and repetitive tasks and occasional interaction with the public, vocational expert testimony should be obtained to determine how [Plaintiff's] mental limitations erode the unskilled occupational base; and
4. “[W]hile [Plaintiff's] non-exertional physical limitations considered singly may not have a significant impact on the availability of unskilled light work, the hearing decision contains no consideration of how the combination of [Plaintiff's] non-exertional limitations may reduce the unskilled light occupational base.”

(Id. at 128-29.)

         The Appeals Council instructed the ALJ to do the following on remand:

1. “Obtain additional evidence concerning [Plaintiff's] impairments in order to complete the administrative record, ” which, “if warranted and available, ” may include, “consultative physical and psychological examinations and medical source statement[s] about what [Plaintiff] can still do despite the impairments, ” and the ALJ should “attempt to resolve the issue of whether Plaintiff is illiterate”;
2. [I]f necessary, obtain evidence from a medical expert to clarify the nature and severity of Plaintiff's impairments”;
3. “Further evaluate [Plaintiff's] mental impairments in accordance with the special technique described in 20 CFR 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described”;
4. “Give further consideration to [Plaintiff's] maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations . .
. In doing so, evaluate the treating and nontreating source opinions pursuant to the provisions of 20 CFR 416.927 and Social Security Rulings 96-2p and 96-5p, and nonexamining source opinions in accordance with the provisions of 20 CFR 416.927(e) and Social Security Ruling 96-6p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating and nontreating sources to provide additional evidence and/or further clarification of the opinions (20 CFR 416.912)”; and
5. “If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on [Plaintiff's] occupational base. . . . Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).”

(Id. at 129-30.)

         The ALJ held a second hearing on January 8, 2014. (Id. at 65-88.) In a February 19, 2014 decision, the ALJ found Plaintiff is not disabled and not entitled to benefits. (Id. at 12-28.) On July 31, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner of Social Security. (Id. at 1-6.)

         Having exhausted the administrative review process, on September 9, 2015, Plaintiff sought judicial review of the ALJ's decision by filing a Complaint in this Court pursuant to 42 U.S.C. § 405(g). (Doc. 1.) On February 16, 2016, Plaintiff filed an Opening Brief, seeking remand of this case to the Social Security Administration for an award of benefits. (Doc. 22.) On April 14, 2016, Defendant filed a Response Brief in support of the Commissioner's decision. (Doc. 27.) On April 29, 2016, Plaintiff filed a Reply Brief. (Doc. 28.)

         II. Legal Standards

         a. Standard of Review

         The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the Commissioner's disability benefits determinations. 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); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The 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). Similarly, the Court reviews “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

         b. The ALJ's Five-Step Evaluation Process

         To be eligible for Social Security benefits, a claimant must show an “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); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 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).

         The ALJ follows a five-step evaluation process to determine whether an applicant is disabled under the Social Security Act:

The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in “substantial gainful activity” and considering the severity of the claimant's impairments. See 20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant's impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See Id. § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, ending the inquiry. See Id. If the process continues beyond the third step, the fourth and fifth steps consider the claimant's “residual functional capacity” in determining whether the claimant can still do past relevant work or make an adjustment to other work. See Id. § 416.920(a)(4)(iv)-(v).

Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

         Applying the five-step evaluation process, the ALJ found that Plaintiff is not disabled and is not entitled to benefits. (AR 28.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 24, 2009. (Id. at 14.) At step two, the ALJ found that Plaintiff has the following severe impairments: lumbar degenerative disc disease with disc protrusion, asthma, chronic headaches, post-traumatic stress disorder (PTSD), major depressive disorder with history of psychosis, obesity, borderline intellectual functioning, and drug and alcohol abuse (DAA) in remission. (Id.) At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 15.)

At step four, the ALJ found the following:
[Plaintiff] has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except [Plaintiff] is able to frequently crawl, kneel, crouch, and climb ramps and stairs, as well as occasionally climb ladders, ropes, and scaffolds. [Plaintiff] should avoid concentrated exposure to pulmonary irritants, poorly ventilated areas, dangerous with moving mechanical parts except for vehicles, and unprotected heights that are high or exposed. [Plaintiff] is also able to perform work that is simple, routine, and repetitive, which can also be learned through demonstration within 30 days and performed in environments that require only occasional changes in the work setting. [Plaintiff] is also able to perform work that involves occasional interaction with the public, co-workers, and supervisors, but can still be in the vicinity of others. [Plaintiff] should not use cash registers or be required to read as a primary job duty.

(Id. at 19-20.) At step five, the ALJ found Plaintiff has no past relevant work, is a younger individual, “has a limited education and is able to communicate in English, ” and “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.” (Id. at 27.) Finally, the ALJ concluded that Plaintiff “has not been under a disability, as defined in the Social Security Act, since August 24, 2009, the date the application was filed.” (Id. at 28.)

         III. Analysis

         Plaintiff alleges that the ALJ committed numerous errors and her decision is not supported by substantial evidence. Specifically, Plaintiff asserts that: (1) the ALJ erred in her treatment of Plaintiff's symptom testimony; and (2) the ALJ failed to comply with the Appeals Council's remand order by (a) failing to consider Plaintiff's educational records and failing to find that Plaintiff is illiterate, (b) failing to properly consider Plaintiff's severe mental impairments, (c) improperly weighing all treating and non-treating medical sources, (d) failing to consider Plaintiff's severe rheumatoid arthritis (RA) and sleep apnea, (e) failing to obtain additional evidence, including medical evidence, and (f) failing to reconcile a conflict between Plaintiff's illiteracy and the occupations the Vocational Expert (VE) testified Plaintiff can perform. (Doc. 22 at 6-24.) Below, the Court addresses Plaintiff's arguments.

         a. Plaintiff's Symptom Testimony

         i. Legal Standards

         Plaintiff argues that the ALJ erred in evaluating Plaintiff's symptom testimony. (Doc. 22 at 21-24.) An ALJ engages in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible. Garrison, 759 F.3d at 1014-15 (citing Lingenfelter, 504 F.3d at 1035-36). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant is not required to show objective medical evidence of the pain itself or of a causal relationship between the impairment and the symptom. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Instead, the claimant must only show that an objectively verifiable impairment “could reasonably be expected to produce his pain.” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1282); see also Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1160-61 (9th Cir. 2008) (“requiring that the medical impairment ‘could reasonably be expected to produce' pain or another symptom . . . requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon”).

         Second, if a claimant shows that she suffers from an underlying medical impairment that could reasonably be expected to produce her pain or other symptoms, the ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how the symptoms, including pain, limit the claimant's ability to work. See 20 C.F.R. § 404.1529(c)(1). General assertions that the claimant's testimony is not credible are insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The ALJ must identify “what testimony is not credible and what evidence undermines the claimant's complaints.” Id. (quoting Lester, 81 F.3d at 834).

         In weighing a claimant's credibility, the ALJ may consider many factors, including, “(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284; see Orn, 495 F.3d at 637-39. The ALJ also considers “the claimant's work record and observations of treating and examining physicians and other third parties regarding, among other matters, the nature, onset, duration, and frequency of the claimant's symptom; precipitating and aggravating factors; [and] functional restrictions caused by the symptoms . . . .” Smolen, 80 F.3d at 1284 (citation omitted).

         At this second step, the ALJ may reject a claimant's testimony regarding the severity of his or her symptoms only when there is “affirmative evidence” of malingering, or if the ALJ offers “clear and convincing reasons” for finding the claimant not credible. Carmickle, 533 F.3d at 1160 (quoting Lingenfelter, 504 F.3d at 1036). “‘The clear and convincing standard is the most demanding required in Social Security Cases.'” Garrison, 793 F.3d at 1015 (quoting Moore v. Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

         Here, there is affirmative evidence of malingering and, therefore, the ALJ was not required to meet the clear and convincing standard. However, regardless, the Court finds that the ALJ provided sufficient reasons ...


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