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Dieter-Bradford v. Berryhill

United States District Court, D. Arizona

September 27, 2017

Deborah Dieter-Bradford, Plaintiff,
v.
Nancy A. Berryhill[1], Acting Commissioner of Social Security, Defendant.

          ORDER

          BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Procedural History

         On June 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).

         On 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.

         II. Plaintiff's Background

         Plaintiff 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[2])). 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).

         Plaintiff 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).

         Plaintiff 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.” (Id.).

         Plaintiff's 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).

         Plaintiff 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[3] 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)).

         When 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).

         Plaintiff's 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).

         Plaintiff 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. (Tr. 62).

         Plaintiff's 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).

         Additionally, 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).

         Although 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).

         Plaintiff's 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).

         III. The ALJ's Decision

         A. Claim Evaluation

         Whether 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)[4]….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.

         B. The ALJ's Findings in Pertinent Part

         The ALJ 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.[5] (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).

         IV. Discussion

         Plaintiff 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.

         A. Standard

         The 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 omitted).

         Substantial 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.

         B. Plaintiff meets Listing 12.05C

         Plaintiff argues that the ALJ erred at his Step Three determination that Plaintiff did not meet or equal Listing ...


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