Sabo v. Astrue

Filing 19

ORDER AFFIRMING the Commissioners decision denying disability benefits. Signed by Senior Judge Frederick J Martone on 3/7/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of the)
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Social Security Administration,
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Defendant.
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Roberta A. Sabo,

No. CV 12-00793-PHX-FJM
ORDER

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We have before us plaintiff’s opening brief (doc. 14), defendant’s response brief (doc.
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This case arises from a denial by the Social Security Administration of an application
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for a period of disability insurance benefits and supplemental security income filed by
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plaintiff on March 24, 2009, alleging disability beginning on January 1, 2003.1 The claims

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were denied initially and upon reconsideration. After a hearing on January 20, 2011, the
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administrative law judge (ALJ) issued a decision denying benefits. The decision became the
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final decision of the Commissioner when the Appeals Council denied plaintiff’s request for
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review. Plaintiff then filed this action for judicial review under 42 U.S.C. § 405(g).
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A district court may set aside a denial of benefits “only if it is not supported by
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Plaintiff later amended her alleged onset date to January 1, 2006.

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substantial evidence or if it is based on legal error.” Thomas v. Barnhart, 278 F.3d 947, 954

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(9th Cir. 2002). Substantial evidence is “relevant evidence which, considering the record as

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a whole, a reasonable person might accept as adequate to support a conclusion. Where the

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evidence is susceptible to more than one rational interpretation, one of which supports the

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ALJ’s decision, the ALJ’s conclusion must be upheld.” Id. (citation omitted).

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The ALJ followed the five-step sequential evaluation process for evaluating disability

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claims. He found that plaintiff had severe impairments of degenerative disc disease, history

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of brain aneurysm, cognitive disorder, depressive disorder, and anxiety disorder. Tr. 24. He

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concluded, however that plaintiff’s allegations of disabling limitations were not fully

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credible, and that plaintiff could do a range of unskilled medium work consistent with the

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ALJ’s hypothetical to the vocational expert, including small products assembler and apparel

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stock checker. Tr. 30. Therefore, the ALJ concluded that plaintiff is not disabled under the

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Social Security Act.

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Plaintiff raises one challenge to the ALJ’s decision: Whether the ALJ erred by failing

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to address two vocational reports by Dorothy Fune, a vocational consultant. Ms. Fune

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concluded that plaintiff was unable to return to her prior work as a bookkeeper, or other

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clerical positions, due to poor numeric processing speed and accuracy. Tr. 279-80. She also

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concluded that plaintiff’s visual processing speed is too low for any work that required a

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standard pace or production to be met. In a post-hearing addendum, Ms. Fune opined that

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plaintiff did not have the ability to perform the jobs described by the vocational expert. Tr.

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285-87.

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Although the ALJ stated that he considered the “entire record,” he did not discuss Ms.

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Fune’s reports in his decision. The Appeals Council considered plaintiff’s argument that this

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was error, but declined plaintiff’s request for review. Specifically, the Appeals Council

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noted that, not only is Ms. Fune not an acceptable medical source, but she based her

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assessment on plaintiff’s subjective reports, which the ALJ found were not fully credible.

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Tr. 2.

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Vocational consultants like Ms. Fune are considered “other sources,” whose opinions
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may be discounted with germane reasons. 20 C.F.R. § 404.1513(a), (d); Molina v. Astrue,

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674 F.3d 1104, 1117 (9th Cir. 2012). Even if the ALJ failed to give germane reasons for

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rejecting Ms. Fune’s reports, any error was harmless given that Ms. Fune’s reports were

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largely based on plaintiff’s self-assessments. The ALJ provided well supported reasons for

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concluding that plaintiff’s allegations are not fully credible.

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The ALJ first found that plaintiff’s assertions of disabling mental limitations were

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contradicted by brain scan evidence that showed no acute processes, and neurological

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examinations which were normal. Tr. 28, 353-54, 357, 362, 385, 394. Moreover, plaintiff’s

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complaints of extreme limitations in memory, concentration, persistence, and pace were

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inconsistent with Dr. Tromp’s finding that plaintiff had low-average memory, and sustained

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concentration and persistence. Tr. 25, 308. Plaintiff’s allegations of disabling physical

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limitations were also contradicted by evidence that she had only “mild” degenerative arthritis

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in her back, her symptoms improved with treatment, and she engaged in strenuous activities

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including lifting heavy plants and hiking. Tr. 25-26, 28, 211-218, 227-34, 248-55, 356, 405.

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Her allegations of disabling visual and mental limitations were contradicted by evidence of

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her daily activities, including reading, crocheting, paying bills, counting change, managing

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her finances, driving and shopping. Tr. 25, 27, 230-31, 251-52, 356, 405. Therefore, the

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ALJ’s determination that plaintiff’s subjective complaints are not fully credible is supported

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by substantial and specific evidence in the record. Importantly, plaintiff does not contest the

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ALJ’s credibility finding.

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Failure to rely on Ms. Fune’s opinion is also harmless in that the opinion is partially

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based on the erroneous assumption that plaintiff was unable to return to work after her

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surgery in 1999, when in fact plaintiff continued to work as a purchasing clerk for several

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years following her surgery and, by her own admission, voluntarily stopped working in

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December 2005 in order to help her parents move to New Mexico. Further, Ms. Fune was

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also under the mistaken impression that plaintiff had been unable to use a computer after her

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surgery, when instead a 2009 medical report indicated that plaintiff had been “typ[ing] on

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the computer all day long.” Tr. 351, 276, 279. Finally, Ms. Fune conceded that there were
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entry level jobs that plaintiff could perform but for plaintiff’s self-assessed limitations due

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to her back impairment.

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We conclude that any error in the ALJ’s failure to discuss Ms. Fune’s report is

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harmless given its inconsistencies with the rest of the record, and because it is largely based

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on plaintiff’s subjective complaints, which the ALJ properly discounted.

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IT IS ORDERED AFFIRMING the Commissioner’s decision denying disability
benefits.
DATED this 7th day of March, 2013.

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