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Guerrero v. Berryhill

United States District Court, D. Arizona

October 23, 2018

Nancy Guerrero, Plaintiff,
Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration, Defendant.


          H. Russel Holland, United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Nancy Guerrero has timely filed her opening brief, [1] to which defendant Nancy A. Berryhill has timely responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On January 6, 2014, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that she became disabled on December 20, 2013. Plaintiff alleges that she is disabled due to arthritis, fibromyalgia, thyroid cancer, dislocated back disc work injury, carpal tunnel, leg nerve damage, and myopia. Plaintiff's application was denied initially and on reconsideration. After a hearing on June 15, 2016, an administrative law judge (ALJ) denied plaintiff's claim. On September 18, 2017, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's July 15, 2016 decision the final decision of the Commissioner. On November 20, 2017, plaintiff commenced this action in which she asks the court to find that she is entitled to disability benefits.

         General Background

         Plaintiff was born on February 2, 1962. She was 54 years old at the time of the administrative hearing. Plaintiff is married and lives with her husband and teen-aged son. Plaintiff does not have a high school education. Plaintiff's first language is Spanish and she does not speak English fluently. Plaintiff's past relevant work is as a hand packager in a warehouse.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through December 31, 2017.”[3] The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since December 20, 2013, the alleged onset date. . . .”[5]

         At step two, the ALJ found that plaintiff had

the following medically determinable impairments: history of thyroid cancer, now stable; hypothyroidism; hyperlipidemia; vitamin D insufficiency; degenerative disc disease of the lumbar spine, including stenosis; fibromyalgia; chronic pain syndrome; carpal tunnel syndrome; bilateral upper extremity paresthesia; Bouchard and Heberdon's nodules; headaches and dizziness secondary to vertigo; hypertension; unstable angina, trace mitral regurgitation, and atherosclerotic heart disease of native coronary artery without angina pectoris; Sicca syndrome; and fatty liver. . . .[6]

         But, the ALJ found that plaintiff did “not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months[.]”[7] Thus, the ALJ found that plaintiff did “not have a severe impairment or combination of impairments. . . .”[8]

         The ALJ explained that this finding was “supported by the repeatedly mild radiographic findings, the mostly normal findings on physical examination, and the claimant's demonstrated response to conservative treatment modalities.”[9] It was for these reasons that the ALJ also found plaintiff's statements about the severity of her impairments less than credible.

         The ALJ considered the medical opinions in the record. The ALJ gave little weight[10]to the opinions of Dr. Scott, [11] Dr. Wavak, [12] and Dr. Griffith.[13]

         The ALJ concluded that plaintiff was “not disabled under sections 216(i) and 223(d) of the Social Security Act.”[14]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), 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. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).


         Plaintiff argues that the ALJ erred at step two by finding that none of her impairments were severe. “An impairment or combination of impairments may be found ‘not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.'” Id. at 687 (quoting S.S.R. No. 85-28 (1985)). “Step two, then, is a de minimis screening device [used] to dispose of groundless claims and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is clearly established by medical evidence.” Id. (internal citations omitted). “Thus, applying [the] normal standard of review to the requirements of step two, [the court] must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [plaintiff] did not have a medically severe impairment or combination of impairments.” Id.

         Plaintiff argues that there was not substantial evidence supporting the ALJ's finding that her impairments were not severe. First, plaintiff argues that the ALJ improperly discounted her statements about the severity of her impairments.

         “An ALJ engages in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “‘First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'“ Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the claimant is not required to show ‘that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.'” Id. (quoting Smolen, 80 F.3d at 1282). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Id. at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant's testimony, the ALJ may use ‘ordinary techniques of credibility evaluation.'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2011) (quoting Turner v. Comm'r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.]” Id. (internal citations omitted).

         The ALJ found plaintiff's pain and symptom statements less than credible because they were not supported by the medical evidence and because her impairments had responded to conservative treatment. ...

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