United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge.
Dana Jo Buona filed the instant action pursuant to 42 U.S.C.
§ 405(g) seeking review of the final decision of the
Commissioner of Social Security. The Magistrate Judge has
jurisdiction over this matter pursuant to the parties consent
under 28 U.S.C. § 636(c). (Doc. 11). The matter is now
fully briefed before this Court (Docs. 14, 18, 21). For the
following reasons, the Court vacates the Commissioner's
decision and remands for consideration in accordance with
February 1, 2013, Plaintiff filed an application for Social
Security Disability Insurance Benefits, and on February 22,
2013 filed an application for Supplemental Security Insurance
Benefits. (Administrative Record (“AR”) 230-33,
238-43). Plaintiff alleged disability as of June 1, 2012 (AR
230, 238) due to: sciatica, fibromyalgia, chronic pain
syndrome, back injury, chronic interstitial cystitis,
irritable bowel constipation, chronic fatigue syndrome, sleep
apnea, depression, cervical discitis, and chronic migraines.
(AR 257). Plaintiff's application was initially denied on
May 24, 2013 (AR 110, 159), and upon reconsideration on
November 27, 2013 (AR 171). On May 19, 2015, Plaintiff
appeared with counsel and testified at an administrative
hearing in front of an Administrative Law Judge
(“ALJ”). (AR 48). The ALJ issued an unfavorable
decision on August 26, 2015. (AR 16-47). Following
Plaintiff's Request for Review (AR 14), on March 6, 2017,
the Appeals Counsel denied Plaintiff's request (AR 1)
making the ALJ's decision the Commissioner's final
decision for the purposes of judicial review.
filed the instant action on April 20, 2017, arguing that the
ALJ erred because she: (1) failed to provide clear and
convincing reasons for discrediting Plaintiff's
testimony, (2) did not give germane reasons for not
considering reports by third-party lay persons, (3)
erroneously excluded consulting physician Fred Wiggins'
opinion that Plaintiff's physical ailments would cause
missed work, and (4) improperly determined that other work
existed for Plaintiff in the national economy. (Doc. 1).
Because the Court finds that the ALJ erred when evaluating
Plaintiff and third-party's testimony, and this error was
not harmless to the determination of disability, it does not
reach Plaintiff's other arguments.
PLAINTIFF'S BACKGROUND, STATEMENTS IN THE RECORD, AND
VOCATIONAL EXPERT'S FINDINGS
was 38 years old on the date of the alleged onset of
disability. (Doc. 18 at 2). She completed high school and one
semester at a junior college. (AR 52).
testified at the administrative hearing that from
approximately 2000-2007 she worked part-time for a business
owned by her ex-husband. (AR 53). Plaintiff answered phones,
created invoices, input data into a computer, and scheduled
appointments. (AR 53-54). She worked from home between two to
four hours a day, half sitting and half walking or standing.
(AR 54). Petitioner left this job when she left her
ex-husband. (AR 55).
2008-2011, Petitioner stated that she worked at a
relative's law firm as a receptionist answering phones
and obtaining information from clients. (AR 55-56). At work
she spent one-third of her workday standing, one-third
walking, and one-third sitting. (AR 57). Petitioner was
scheduled to work 5 days a week for 35 hours, but often
missed work due to migraines. (AR 57). On the days she did
not feel well, Plaintiff had the option to lie down on a
futon at the office. (AR 58). Petitioner lost this job
because she frequently missed work and committed clerical
errors. (AR 57).
Petitioner worked as a teacher's aide at a charter school
run by another family member from August 2011 to June 2012.
(AR 58-59). At this job, she helped second grade students
with math five days a week for a total of 27 hours. (AR 59).
She was able to sit, stand, and walk as needed. (AR 59). She
discontinued this work because the school year had ended and
she was scheduled for a spinal fusion. (AR 60).
Vocational Expert (“VE”) testified that
Plaintiff's prior work included teacher's aide,
clerical receptionist, and administrative clerk. (AR 80). The
ALJ asked the VE what work was possible for an individual
limited to light work at a non-production pace; occasional
climbing, stairs, stooping, kneeling, crouching, crawling,
and overhead reaching bilaterally; with no exposure to
extreme cold, vibration, or unprotected heights the VE
determined that an individual could not perform
Plaintiff's past work, but could still perform the work
of mail clerk, storage facility rental clerk, charge clerk,
food and beverage order clerk, and telemarketer. (AR 83-84).
However, the VE added that if the hypothetical individual
also needed to miss two or three days of work per month
“it would preclude all jobs.” (AR 85-88).
SUMMARY OF ALJ'S FINDINGS
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R. §§
404.1520, 416.920. To establish disability, the claimant must
show: (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”). Id.
“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).” Dominguez v. Colvin, 808 F.3d 403, 405
(9th Cir. 2015). At this step, the ALJ considers (a) whether
there is an impairment that would reasonably be expected to
cause the claimant's symptoms, and (b) the severity of
claimant's ailments, including intensity, persistence,
and limiting effects of alleged symptoms. SSR 96-7p. If the
claims of intensity, persistence and limiting effects are not
supported by the evidence, the ALJ needs to determine, based
on the record, whether plaintiff's claims are credible.
Id. Then, at step five, “[a]fter developing
the RFC, the ALJ must determine whether the claimant can
perform past relevant work.” Dominguez, 808
F.3d at 405. At this stage, “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.; 20 C.F.R. §§
case, at step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since June 1, 2012.
two, the ALJ determined that Plaintiff had severe
impairments, including “degenerative disc disease of
cervical spine variously diagnosed as cervical radiculopathy,
post-laminectomy syndrome in the cervical region, cervical
spondylosis, cervicalgia, cervical spinal stenosis, and
cervical spondylosis with facet syndrome, status post
cervical discectomy and fusion at ¶ 6-C7; lumbar
degenerative disc disease variously diagnosed as
thoracic/lumbosacral neuritis/radiculitis, lumbosacral
spondylosis without myelopathy, lumbar radiculopathy, lumbar
facet syndrome; labral tear and trochanteric bursitis of the
left hip; chronic pain syndrome; and affective and anxiety
disorders.” (AR 23).
ALJ decided, at step three, that the Plaintiff's
impairments did not meet or equal the listed impairments,
either singularly or in combination. (AR 23-24).
found that while Plaintiff's impairments could cause the
purported symptoms, the evidence did not support
Plaintiff's claims of the limiting effects of these
impairments. (AR 31-32). She further found that
Plaintiff's subjective claims of the intensity,
frequency, and limiting effects of her impairments were not
credible. (AR 31).
found that given the limiting effects of her ailments,
Plaintiff's RFC included performing simple, unskilled,
light work at below a production pace. (AR 26, 31). The RFC
included occasional walking of stairs and ramps, as well as
stooping, kneeling, crouching, crawling, and reaching
overhead. (AR 26) However, the RFC provided that Plaintiff
should not be exposed to “extreme cold, vibrations, and
hazards.” (AR 26).
five, the ALJ concluded that Plaintiff was not disabled; and
given Plaintiff's RFC, age, education, and work
experience she could not perform past relevant work, but
could perform the occupations of office helper, mail clerk,
storage facility rental clerk, food and beverage order clerk,
and telemarketer. (AR 37-40).
STANDARD OF REVIEW
Court has the “power to enter, upon the pleadings and
the 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
the findings are based upon substantial evidence and there is
no legal error. 42 U.S.C.§§ 405(g), 1383(c)(3);
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008). 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)). 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 v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing
Matney v. Sullivan, 981 F.2d 1016, 1018 (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.
the Commissioner's decision “cannot be affirmed
simply by isolating a specific quantum of supporting
evidence. . . . Rather, the Court must consider the record as
a whole, weighing both evidence that supports and evidence
that detracts from the [Commissioner's]
conclusion.” Id. (internal citations and
The ALJ Failed to Provide Clear and Convincing Reasons for