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Whimper-Sullivan v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 19, 2018

Tamara Ja'net Whimper-Sullivan, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.

         Plaintiff Tamara Ja'net Whimper-Sullivan applied for disability insurance benefits and for a period of disability, alleging disability beginning October 20, 2015. (A.R. 14.) The claim was denied initially on June 27, 2016, and upon reconsideration on July 18, 2016. (Id.) Plaintiff then requested a hearing. (Id.) On January 4, 2017, Plaintiff and a vocational expert (VE) testified at a hearing before an Administrative Law Judge (ALJ). (Id. at 28-59.) At the hearing, Plaintiff amended her alleged onset date to August 17, 2015. (Id. at 14.)

         On February 28, 2017, the ALJ issued a written decision finding Plaintiff not disabled within the meaning of the Social Security Act, which became the Commissioner's final decision when the Appeals Council denied review. (Id. at 1-3.) On August 4, 2017, Plaintiff sought review by this Court. (Doc. 1.) After receipt of the administrative record (Doc. 11), the parties fully briefed the issues for review (Docs. 12-13). For reasons stated below, the Court reverses the Commissioner's decision and remands for further proceedings.

         BACKGROUND

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (RFC) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. If not, the claimant is disabled.

         At step one, the ALJ found that Plaintiff meets the insured status requirements through December 31, 2020, and has not engaged in substantial gainful activity since August 17, 2015. (A.R. 16.) At step two, the ALJ found that Plaintiff has the following severe impairments: lumbar osteophytes, scoliosis, lumbar radiculopathy, obesity, post-traumatic stress disorder (PTSD), depression, adjustment disorder, and cannabis use disorder. (Id.) At step three, the ALJ determined that Plaintiff's listed impairments do not meet or equal the severity of one of the listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 13.) At step four, the ALJ found that Plaintiff:

has the [RFC] to perform sedentary work . . . except [she] is limited to unskilled work. She can have occasional contact with supervisors, co-workers and the general public. [She] needs a sit/stand option every 30 minutes for position changes.

(Id. at 19.) The ALJ also found that Plaintiff is unable to perform any past relevant work. (Id. at 22.) At step five, however, after considering Plaintiff's age, education, work experience, and RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 23.) Accordingly, the ALJ found Plaintiff not disabled. (Id. at 23-24.)

         STANDARD OF REVIEW

         It is not the district court's role to review the ALJ's decision de novo or otherwise determine whether the claimant is disabled. Rather, the court is limited to reviewing the ALJ's decision to determine whether it “contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla but less than a preponderance, and “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. The court, however, “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Id. Nor may the court “affirm the ALJ on a ground upon which he did not rely.” Id.

         DISCUSSION

         On appeal, Plaintiff challenges whether the ALJ's RFC determination is supported by substantial evidence. Specifically, Plaintiff contends that the ALJ gave improper weight to Veteran Affairs' (VA) disability determination, failed to give appropriate weight to her treating physician, and erred in not doing the proper analysis required under 20 C.F.R. § 404.1535 for Plaintiff's cannabis use disorder. Plaintiff also asserts that the Appeals Council improperly ignored new and material evidence regarding her lumbar and psychological conditions. Having reviewed the record and the parties' briefs, the Court concludes that the ALJ erred in giving only little weight to the VA disability determination. Moreover, the ALJ's decision must be reversed because this legal error was not harmless.

         I. The ALJ Erred in Determining Plaintiff's RFC

         A. VA's ...


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