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Bass v. Commissioner of Social Security Administration

United States District Court, D. Arizona

October 31, 2017

Robert Bass, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)

         The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent of both parties. See Fed.R.Civ.P. 73; (Doc. 15)

         The court finds that the final decision of the Commissioner is supported by substantial evidence and free from legal error.

         Bass's condition does not meet or equal Listing 5.06. See 20 C.F.R. Part 404, Subpt P, App. 1 § 5.06. The ALJ properly discounted Bass's credibility. The ALJ properly identified and resolved the conflict between the Dictionary of Occupational Titles (DOT) and the testimony from the vocational expert.

         PROCEDURAL HISTORY

         On September 17, 2014, Bass filed for disability insurance benefits pursuant to Title II of the Social Security Act and supplemental security income pursuant to Title XVI. (Tr. 19), (Tr. 251), (Tr. 279-287) He alleged disability beginning on May 30, 2014, due to scoliosis, degenerative disc disease with radiculopathy, headaches, gastric complications of hernia repair, left knee DJD (degenerative joint disease), depression, anxiety, and gastroparesis (stomach partial paralysis). (Tr. 313)

         His claims were denied initially (Tr. 154-157, 251) and upon reconsideration (Tr. 159-162, 251). Bass requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Laura Havens on February 11, 2016 and again on June 22, 2016. (Tr. 39, 60) In her decision, dated July 14, 2016, the ALJ found Bass was not disabled. (Tr. 19-29) Bass appealed, and on September 23, 2016, the Appeals Council accepted review. (Tr. 4)

         In a decision dated October 25, 2016, the Appeals Council found that Bass is not disabled. (Tr. 4-6) The Appeals Council adopted most of the ALJ's decision but made some significant amendments. Id. Bass's filing date was changed to June 16, 2014, his last insured date was changed to December 31, 2018, and his Residual Functional Capacity was changed to “a reduced range of light exertional work.” (Tr. 4-5) (emphasis added) The Appeals Council concluded that Bass was able to “perform past relevant work as a pharmacy clerk/customer service clerk as it was actually performed by him and generally performed in the national economy.” (Tr. 5) In the alternative, Bass could work as a counter clerk or a cashier. (Tr. 6) Accordingly, the Appeals Council found that Bass was not disabled through the date of the hearing decision. (Tr. 6) Bass subsequently filed this action appealing the Commissioner's final decision. (Doc. 1)

         Claimant's Work History and Medical History

         Bass worked as an emergency medical technician between March of 1993 and September of 2008. (Tr. 315) He worked as a driver between July of 2010 and June of 2011. (Tr. 315) He worked in a mail order pharmacy between September 2011 and March of 2013. (Tr. 315, 66)

         Bass alleged disability beginning on May 30, 2014, due to scoliosis, degenerative disc disease with radiculopathy, headaches, gastric complications of hernia repair, left knee DJD (degenerative joint disease), depression, anxiety, and gastroparesis (a disorder that slows or stops the movement of food from the stomach to the small intestine). (Tr. 313)

         In January of 2015, John Fahlberg, M.D., reviewed the medical record for the disability determination service and offered an opinion of Bass's physical limitations. (Tr. 99) Fahlberg opined that Bass could lift 20 pounds occasionally and 10 pounds frequently. (Tr. 99) He could sit, stand, and/or walk for 6 hours in an 8-hour day. (Tr. 99) He should only occasionally climb ladders, rope, or scaffolds. (Tr. 99) Falhberg opined that Bass “is on [a] vigorous campaign for disability due to homelessness and unemployment.” (Tr. 99) “He does have some mild to mod[erate] [diagnoses] that are supported but [it] appears his seeking of med[ical] attention for rather minor illnesses is exaggerated and [is] leading to excessive weakly supported [diagnoses].” (Tr. 99) Falhberg's opinion suggests that Bass can perform light work with some exceptions. See 20 C.F.R. §§ 404.1567(b), 416.967(b).

         In February of 2015, Stephen Bailey, Ed.D., reviewed the medical record for the disability determination service and offered an opinion of Bass's mental limitations. (Tr. 97) He diagnosed affective disorder and anxiety-related disorder. (Tr. 97) He evaluated Bass's “B” listing criteria, which gauge the severity of his mental impairment. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). He found Bass has no restrictions of his daily activities; “mild” difficulties in maintaining social functioning; “mild” difficulties in maintaining concentration, persistence or pace; and no evidence of decompensation. (Tr. 97) Bailey further opined that the medical evidence did not establish the presence of the “C” criteria, which are an alternative gauge of the extent of his mental impairment. (Tr. 97) According to Bailey, Bass has been treated for depression and anxiety, but he reports “no psychological symptoms that would limit him in a work setting.” (Tr. 97) Bailey concluded that Bass's mental impairment was non-severe. (Tr. 97)

         In April of 2015, Eric Penner, Ph.D., reevaluated Bass's medical record and affirmed Bailey's opinion. (Tr. 118) According to Penner, “[the] evidence . . . indicates no significant changes in his mental status.” (Tr. 117)

         In April of 2015, J. Wright, M.D., reevaluated Bass's medical record and agreed with Falhberg that Bass could perform light work with some exceptions. (Tr. 120-121)

         In February of 2016, Jerome C. Rothbaum, M.D., examined Bass for the disability determination services. (Doc. 1069) He diagnosed scoliosis, bilateral knee pain, myofascial low back pain, headache, history of gastroparesis (stomach partial paralysis), hiatal hernia, history of diverticulosis (a colon abnormality), status post cholecystectomy (gallbladder removal), history of pulmonary hypertension, history of fibromyalgia (not substantiated), history of malabsorption, and B-12 and ferrous sulfate injections. (Tr. 1079) He opined that Bass could occasionally lift and carry up to 20 lbs. (Tr. 1073) He could sit for 6 hours, stand for 3 hours and walk for 2 hours in an 8-hour day. (Tr. 1074) He could occasionally reach, handle, finger, feel, push, and pull. (Tr. 1075) He could occasionally climb stairs and ramps, balance, stoop, kneel, crouch, or crawl. (Tr. 1067) He should never work at unprotected heights; with moving mechanical parts; or with dust, odors, fumes, or other pulmonary irritants. (Tr. 1077) He could occasionally operate a motor vehicle; work around humidity and wetness; or be exposed to extreme cold, extreme heat, or vibrations. (Tr.1077)

         On February 11, 2016, Bass appeared with counsel at a hearing before the ALJ. (Tr. 60) Bass explained that his disabling impairments are “physical only.” (Tr. 68-60) His depression and anxiety are “maybe just situational.” (Tr. 60) He currently takes “19 or 20 medications.” (Tr. 60) He has pain over his entire body. (Tr. 70) Sometimes it is “dull and achy, sometimes it's sharp.” (Tr. 70) He has stomach problems that result in constipation, diarrhea, and vomiting. (Tr. 71) He ...


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