United States District Court, D. Arizona
BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE.
Deborah Dieter-Bradford has filed the instant action pursuant
to 42 U.S.C. § 405(g) seeking review of the final
decision of the Commissioner of Social Security. (Doc. 1).
The Magistrate Judge has jurisdiction over this matter
pursuant to the parties' consent. (Doc. 11). See
28 U.S.C. § 636(c). Pending before the Court are
Plaintiff's Opening Brief (Doc. 14), Defendant's
Brief (Doc. 15), and Plaintiff's Reply Brief (Doc. 16).
For the following reasons, the Court remands this matter for
an immediate calculation and award of benefits.
28, 2012, Plaintiff protectively filed applications for
disability benefits and for supplemental security income,
alleging disability since March 28, 2004, due to chest pains,
asthma, anxiety, depression, metal plate in right wrist, high
blood pressure, acid reflux, and possible chronic obstructive
pulmonary disease. (Transcript/Administrative Record
(“Tr.”) at 45, 395, 402, 430). Plaintiff's
applications were denied initially and upon reconsideration,
and Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”). (See Plaintiff's
Brief at 2 (citing Tr. at 157, 165, 173)). On June 13, 2013,
Plaintiff, who appeared with counsel, and a vocational expert
(“VE”) testified before ALJ Peter J. Baum. (Tr.
at 78-115). On June 17, 2013, the ALJ issued his decision
denying Plaintiff's request for benefits. (Tr. at
133-143). Thereafter, Plaintiff requested review by the
Appeals Council and submitted additional evidence.
(Plaintiff's Brief at 2 (citing Tr. at 267, 269, 278-80,
281-305)). On June 26, 2014, the Appeals Counsel granted
Plaintiff's request for review and remanded her claims to
the ALJ for readjudication. (Tr. at 149-53).
January 5, 2015, Plaintiff, who appeared with counsel, and a
VE testified before the ALJ. (Tr. at 53-115). On February 3,
2015, the ALJ issued a decision once again denying
Plaintiff's request for benefits. (Tr. at 26-45).
Thereafter, the Appeals Council denied Plaintiff's
request for review, thus making the ALJ's January 5, 2015
decision the Commissioner's final decision for purposes
of judicial review. (Tr. at 1-6). Plaintiff then initiated
the instant action.
was born on December 12, 1970 and was 33 years of age on her
alleged disability onset date. (Tr. at 58). Plaintiff
repeated the second grade twice. (Tr. at 84). She testified
that she “had a special learning disability. . . I had
a speech problem” and she was placed in speech
therapy. (Tr. at 84; see also Tr. at 431
(Plaintiff's disability report does not indicate that she
attended special education classes)). When in school, Plaintiff
also received tutoring in reading. (Tr. at 84-85). Plaintiff
quit school after the eighth grade. (Tr. at 58). Plaintiff
also testified that she suffered from seizures as a child.
(Tr. at 59).
has a driver's license. (Tr. at 85). She testified that
when taking the test for her driver's license, she
“read it over and over….And then I did ask the
lady at the DMV, if what was the version of like I can't
remember what the one was. But I missed like two or three of
them….But she was nice. Then she asked me[.] She says,
well I know you know this. So she read it in different terms.
And then I got it right.” (Tr. 85-86). Therefore,
Plaintiff passed the test on her first try. (Tr. at 86).
also testified that reading “makes my heads [sic] hurts
[sic]. And then I walk away. And then I'll come back
later and finish it.” (Tr. at 98). When asked why she
walks away, Plaintiff responded: “Extraction [sic], or
just I ain't in the mood, or something.”
past work includes: making and shipping pellet guns from June
3, 2002 to August 21, 2002; working as a riveter at Gray
Metal Productions from December 2002 through March 2004;
working in screening and painting from April 28, 2004 to May
10, 2004; working as a cashier at McDonald's from
November to December 2006; inspecting and sorting at a food
distribution company in August 2008; working as a cashier
from October to December 2008; and assembly work at a foam
company in 2009. (Tr. at 60, 89, 449; 475). Additionally, at
some unspecified time, Plaintiff worked at a car dealership.
(See Tr. at 61-62).
worked for the longest duration at Gray Metal Products where
her work involved “[r]iveting, bender…it bends
in the steel in the air duct things….” (Tr. at
89). She “sometimes” worked by herself. (Tr. at
68) She was eventually criticized at the job and experienced
stress, but “I was getting abused at the time, and I
would just stick to it so I didn't have to go
home.” (Id.). Plaintiff ultimately walked off
the job because her “boss grabbed me. And I kind of got
mad….I walked off the job because I didn't want to
hit her.” (Tr. at 90; id. (Plaintiff's
boss grabbed her out of anger)).
Plaintiff worked as a cashier, she had to have everything
written down “because I didn't remember the buttons
or anything.” (Tr. at 89). She also testified about
having difficulty with “know[ing] how much money you
had in … [the cash register] and how many sales you
made on the receipt. Then you're subtracting [inaudible]
and stuff.” (Tr. at 61).
work manufacturing pellet guns involved “put[ting] the
guns together, or you'd have to test and see if the
little cartridge was good or not….The boss said I
wasn't quick enough. You had to have a quota or something
like that.” (Tr. at 60).
also tried working at a car dealership as a sales and lease
consultant for about a month, but she had difficulty with the
paperwork involving “[h]ow much it was supposed to be
sold for, the car. And the paperwork to see if they were
approved.” (Tr. at 61). Co-workers had to help her.
anxiety and dislike of being around a lot of people prevent
her from looking for work, and she does not think she can
work full time because of her memory and crying spells. (Tr.
at 91, 100; see also Tr. at 58 (Plaintiff has not
looked for work since June 2013 “[b]ecause I stay
inside because I don't want to be judged. And plus too
much stress.”); Tr. at 62-63 (Plaintiff cries when she
is in stressful situations); Tr. 97-98 (crying spells)). She
also suffers from depression. (Tr. at 95). Plaintiff does not
handle stress or criticism well: “If somebody raises
their voice, or just in a bad [sic], and they look at me, it
makes me want to cry.” (Tr. at 97). Plaintiff does not
trust people because she feels “they are going to come
after me, or judge me.” (Tr. at 64; see also
Tr. at 66 (Plaintiff fears people are going to hurt her)).
Plaintiff experiences anxiety when “something
doesn't go right, or if I go over the things and I
didn't understand it, I get all worked up, and my chest
starts pounding and my hands start getting sweaty.”
(Tr. at 65-66).
Plaintiff, who is right-handed, has a metal plate in her
right wrist and her wrist hurts if she uses it too much. (Tr.
at 95-96). Plaintiff also has suffered a dislocated rotator
cuff in her left shoulder and it bothers her to raise her
elbow. (Tr. at 96).
Plaintiff has had a checking account, it was closed because
of overdrafts. (Tr. at 68-69). At the time of the 2015
hearing, Plaintiff lived with her boyfriend who paid the
bills. (Tr. at 69).
medications include fluoxetine for depression, prozan for
anxiety, bupropion for mood disorder, cyclobenzaprine and/or
prednisone for pain, in addition to medications for asthma,
acid reflux, and high blood pressure. (Tr. at 433, 456).
The ALJ's Decision
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R. § 416.920,
416.1520. To establish disability, the claimant must show
that: (1) she has not performed substantial gainful activity
since the alleged disability onset date (“Step
One”); (2) she has a severe impairment(s) (“Step
Two”); and (3) her impairment(s) meets or equals the
listed impairment(s) (“Step Three”). “If
the claimant satisfies these three steps, then the claimant
is disabled and entitled to benefits. If the claimant has a
severe impairment that does not meet or equal the severity of
one of the ailments listed…, the ALJ then proceeds to
step four, which requires the ALJ to determine the
claimant's residual functioning capacity (RFC)….After developing the RFC,
the ALJ must determine whether the claimant can perform past
relevant work…. If not, then at step five, the
government has the burden of showing that the claimant could
perform other work existing in significant numbers in the
national economy given the claimant's RFC, age,
education, and work experience.” Dominguez,
808 F.3d at 405.
The ALJ's Findings in Pertinent Part
determined that Plaintiff “has the following severe
impairments: affective disorder [and] low intellectual
capacity[.]” (Tr. at 32). The ALJ found that
Plaintiff's impairments did not meet or equal a listed
impairment. (Tr. at 38-40). The ALJ further
found that Plaintiff had the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant
can perform no overhead (elbow above plane of the shoulder)
lifting with her left, non-dominant arm, she is limited to
unskilled work; she can work in proximity, but not in
conjunction with others.
(Tr. 40). After taking evidence from the VE, the ALJ
determined that Plaintiff could perform her “past
relevant work as a hand riveter.” (Tr. 44-45).
Therefore, the ALJ found that Plaintiff was not disabled
under the Social Security Act from March 28 2004 through the
date of the ALJ's decision. (Tr. at 45).
argues that the ALJ's decision is erroneous because
substantial evidence does not support his findings: (1) that
Plaintiff did not meet the requirements of Listing 12.05C at
Step Three; (2) that Plaintiff could perform past relevant
work; (3) concerning examining psychologist Dr. Lin's
opinion about Plaintiff's social functioning; and (4)
rejecting Dr. Crago's opinion about Plaintiff's
mental limitations. Defendant counters that the ALJ's
opinion should be affirmed because it is free from error and
based upon substantial evidence.
court has the “power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. §405(g). The factual
findings of the Commissioner shall be conclusive so long as
they are based upon substantial evidence and there is no
legal error. 42 U.S.C. §§ 405(g); Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The
“court may set aside the Commissioner's denial of
disability insurance benefits when the ALJ's findings are
based on legal error or are not supported by substantial
evidence in the record as a whole.” Tackett v.
Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations
evidence is “‘more than a mere scintilla[, ] but
not necessarily a preponderance.'”
Tommasetti, 533 F.3d at 1038 (quoting Connett v.
Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see
also Tackett, 180 F.3d at 1098. Further, substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Where “the evidence can support either outcome, the
court may not substitute its judgment for that of the
ALJ.” Tackett, 180 F.3d at 1098 (citing
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992)). Moreover, the Commissioner, not the court, is charged
with the duty to weigh the evidence, resolve material
conflicts in the evidence and determine the case accordingly.
Matney, 981 F.2d at 1019. However, “the
Commissioner's decision ‘cannot be affirmed simply
by isolating a specific quantum of supporting
evidence.'” Tackett, 180 F.3d at 1098
(quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
Cir.1998)). Rather, the court must consider the record as a
whole, weighing both evidence that supports and evidence that
detracts from the Commissioner's conclusion, and may not
affirm simply by isolating a specific quantum of supporting
evidence. Id.; Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014). The court shall “review 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, 759 F.3d at 1010.
Plaintiff meets Listing 12.05C
argues that the ALJ erred at his Step Three determination
that Plaintiff did not meet or equal Listing ...