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McNeal v. Berryhill

United States District Court, D. Arizona

March 23, 2018

Marion A. McNeal, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Bernardo P. Velasco United States Magistrate Judge.

         Plaintiff Marion A. McNeal 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. 8). See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief (Doc. 12), Defendant's Brief (Doc. 13), and Plaintiff's Reply Brief (Doc. 15). For the following reasons, the Court remands this matter for further proceedings.

         I. Procedural History

         In May, 2013, Plaintiff protectively filed an application for disability insurance benefits, alleging that she had been disabled since February 24, 2013 because of “[b]rain surgery due to an aneurysm” and hypertension. (Transcript/Administrative Record (“Tr.”) at 148, 165, 169). Plaintiff's application was denied initially and upon reconsideration. (Tr. 92-99). Upon Plaintiff's request for a hearing, Administrative Law Judge (“ALJ”) Yasmin Elias held a hearing on September 30, 2015, where Plaintiff who was represented by counsel, and vocational expert (“VE”) Lynda Berkley testified. (Tr. 37-62, 100). On January 18, 2016, the ALJ issued her decision denying Plaintiff's request for benefits. (Tr. at 22-32). Thereafter, the Appeals Council denied Plaintiff's request for review (Tr. at 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff then initiated the instant action.

         II. Plaintiff's Background

         Plaintiff was born on August 13, 1954 and was 58 years of age on her alleged onset date. (Tr. at 148, 42). Plaintiff completed high school and two years of college. (Tr. at 50). Plaintiff worked in quality control for a defense contractor from 1995 through 2010. (Tr. at 50, 179). Prior to that, she worked as a warehouse I.D. specialist from March 1982 to May 1995. (Tr. at 179). Plaintiff stopped working in 2010 because she retired due to years of service and not because of any medical condition. (Tr. at 169, 325).

         In February 2013, Plaintiff was found to have an aneurysmal subarachnoid hemorrhage. (Tr. at 260, 276-77, 411). Her symptoms were severe headaches, nausea, and vomiting. (Tr. at 264, 276). On March 8, 2013, neurosurgeon Joseph M. Zambraski, M.D., performed a right orbital zygomatic clipping of the aneurysm. (Tr. at 411, 415).

         Plaintiff asserts that she has been unable to work since February 24, 2013 due to lack of concentration because she cannot “stay[] focused on one thing too long. I just do a little of this and maybe a little of that. I can't do no one job and finish it out yet.” (Tr. at 46). She is unable to comprehend things she reads or follow conversations. (Tr. 52-53). She is forgetful and gets lost easily. (Tr. at 53). Plaintiff also experiences frequent mood changes and becomes overwhelmed “when I get so much thrown at me . . . .” (Tr. at 55). Plaintiff tires easily. (Tr. at 176). She also becomes dizzy if she turns her head too quickly. (Tr. at 176). Additionally, due to a car accident prior to the hearing, Plaintiff has difficulty sitting for long periods and experiences pain in her lower pelvic area when walking. (Tr. at 48).

         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. § 404.1520. 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”). Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2016). If the claimant satisfies Steps One through Three, then she is disabled and entitled to benefits. Id. 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).[1] Id. After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work. Id. If the claimant cannot perform past relevant work, then the analysis proceeds to Step Five where 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. Id.

         B. The ALJ's Findings in Pertinent Part

         The ALJ determined that Plaintiff “has the following severe impairments: benign brain neoplasm and organic brain disorder[.]” (Tr. at 24). The ALJ found that Plaintiff had the RFC

to perform medium work as defined in 20 CFR 404.1567(c) except claimant could never climb ladders, ropes or scaffolds. Claimant should avoid moderate exposure to workplace hazards such as moving machinery and unprotected heights. Claimant could perform simple routine and repetitive tasks in a slow-paced and stable work environment.

(Tr. 26). Based upon the vocational expert's testimony at the hearing, the ALJ determined that Plaintiff was unable to perform her past work as a quality-control assembly technician. (Tr. 30). The ALJ further relied on the VE's testimony to determine that Plaintiff would be able to perform other work such as: janitor, Dictionary of Occupational Titles (“DOT”) No. 381.687-018; laundry worker; DOT No. 361.685- 018; and housekeeper, DOT No. 323.687-010[2]. (Tr. 31). Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act from February 24, 2013 through the date of the ALJ's decision. (Id.).

         IV. Discussion

         Plaintiff argues that the ALJ failed to comply with Social Security Ruling[3](“SSR”) 00-4P with regard to vocational expert testimony, and that the ALJ failed to provide legally sufficient reasons for rejecting the opinion of Plaintiff's treating physician. Defendant requests affirmance of the ALJ's decision.

         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). This 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. The ALJ's reliance on vocational expert testimony

         Plaintiff contends that the ALJ's decision as Step Five, which rests on the three DOT occupations cited by the VE is not supported by substantial evidence in the record According to Plaintiff, the VE's testimony conflicted with the DOT. In cases where the VE's testimony conflicts with the DOT, the ALJ is required by SSR 00-4P to obtain a reasonable explanation from the VE for those conflicts. Plaintiff asserts that the instant ALJ failed to comply with SSR 00-4P.

         If the VE's “opinion that the applicant is able to work conflicts with, or seems to conflict with, the requirements listed in the Dictionary [of Occupational Titles], then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant is disabled.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citing SSR 00-4P, 2000 WL 1898704, at *2 (2000)); see also Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (“the ALJ is required to reconcile the inconsistency.”). “The ALJ's failure to resolve an apparent inconsistency may leave . . . [the court] with a gap in the record that precludes . . . [the court] from determining whether the ALJ's decision is supported by substantial evidence.” Zavalin, 778 F.3d at 846 (remanding for further proceedings where ALJ failed to reconcile apparent conflict, leaving the court with a “mixed record” from which it could not determine whether substantial evidence supported the ALJ's step-five finding that claimant could work). The Ninth Circuit has noted that “tasks that aren't essential, integral, or expected parts of a job are less likely to qualify as apparent conflicts that the ALJ must ask about.” Gutierrez, 844 F.3d at 808. Thus, “[t]he requirement for an ALJ to ask follow up questions is fact-dependent.” Id.

         Here, the ALJ asked the VE to identify any conflict between her testimony and the DOT. (Tr. at 56). The VE did not identify any such conflict during her testimony (Tr. at 56-61), although she did explain that “pace” was not discussed in the DOT and that her testimony concerning that issue β€œis based on my professional experience having done job analyses on these jobs and observed how they're performed. And then in addition, the essence of the type of work and the duties as described in the DOT.” (Tr. at 59). The ALJ found, β€œ[p]ursuant to SSR 00-4[P], . . . that ...


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