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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) ) Roberta A. Sabo, No. CV 12-00793-PHX-FJM ORDER 16 17 We have before us plaintiff’s opening brief (doc. 14), defendant’s response brief (doc. 18 17), and plaintiff’s reply brief (doc. 18). 19 This case arises from a denial by the Social Security Administration of an application 20 for a period of disability insurance benefits and supplemental security income filed by 21 plaintiff on March 24, 2009, alleging disability beginning on January 1, 2003.1 The claims 22 were denied initially and upon reconsideration. After a hearing on January 20, 2011, the 23 administrative law judge (ALJ) issued a decision denying benefits. The decision became the 24 final decision of the Commissioner when the Appeals Council denied plaintiff’s request for 25 review. Plaintiff then filed this action for judicial review under 42 U.S.C. § 405(g). 26 A district court may set aside a denial of benefits “only if it is not supported by 27 28 1 Plaintiff later amended her alleged onset date to January 1, 2006. 1 substantial evidence or if it is based on legal error.” Thomas v. Barnhart, 278 F.3d 947, 954 2 (9th Cir. 2002). Substantial evidence is “relevant evidence which, considering the record as 3 a whole, a reasonable person might accept as adequate to support a conclusion. Where the 4 evidence is susceptible to more than one rational interpretation, one of which supports the 5 ALJ’s decision, the ALJ’s conclusion must be upheld.” Id. (citation omitted). 6 The ALJ followed the five-step sequential evaluation process for evaluating disability 7 claims. He found that plaintiff had severe impairments of degenerative disc disease, history 8 of brain aneurysm, cognitive disorder, depressive disorder, and anxiety disorder. Tr. 24. He 9 concluded, however that plaintiff’s allegations of disabling limitations were not fully 10 credible, and that plaintiff could do a range of unskilled medium work consistent with the 11 ALJ’s hypothetical to the vocational expert, including small products assembler and apparel 12 stock checker. Tr. 30. Therefore, the ALJ concluded that plaintiff is not disabled under the 13 Social Security Act. 14 Plaintiff raises one challenge to the ALJ’s decision: Whether the ALJ erred by failing 15 to address two vocational reports by Dorothy Fune, a vocational consultant. Ms. Fune 16 concluded that plaintiff was unable to return to her prior work as a bookkeeper, or other 17 clerical positions, due to poor numeric processing speed and accuracy. Tr. 279-80. She also 18 concluded that plaintiff’s visual processing speed is too low for any work that required a 19 standard pace or production to be met. In a post-hearing addendum, Ms. Fune opined that 20 plaintiff did not have the ability to perform the jobs described by the vocational expert. Tr. 21 285-87. 22 Although the ALJ stated that he considered the “entire record,” he did not discuss Ms. 23 Fune’s reports in his decision. The Appeals Council considered plaintiff’s argument that this 24 was error, but declined plaintiff’s request for review. Specifically, the Appeals Council 25 noted that, not only is Ms. Fune not an acceptable medical source, but she based her 26 assessment on plaintiff’s subjective reports, which the ALJ found were not fully credible. 27 Tr. 2. 28 Vocational consultants like Ms. Fune are considered “other sources,” whose opinions -2- 1 may be discounted with germane reasons. 20 C.F.R. § 404.1513(a), (d); Molina v. Astrue, 2 674 F.3d 1104, 1117 (9th Cir. 2012). Even if the ALJ failed to give germane reasons for 3 rejecting Ms. Fune’s reports, any error was harmless given that Ms. Fune’s reports were 4 largely based on plaintiff’s self-assessments. The ALJ provided well supported reasons for 5 concluding that plaintiff’s allegations are not fully credible. 6 The ALJ first found that plaintiff’s assertions of disabling mental limitations were 7 contradicted by brain scan evidence that showed no acute processes, and neurological 8 examinations which were normal. Tr. 28, 353-54, 357, 362, 385, 394. Moreover, plaintiff’s 9 complaints of extreme limitations in memory, concentration, persistence, and pace were 10 inconsistent with Dr. Tromp’s finding that plaintiff had low-average memory, and sustained 11 concentration and persistence. Tr. 25, 308. Plaintiff’s allegations of disabling physical 12 limitations were also contradicted by evidence that she had only “mild” degenerative arthritis 13 in her back, her symptoms improved with treatment, and she engaged in strenuous activities 14 including lifting heavy plants and hiking. Tr. 25-26, 28, 211-218, 227-34, 248-55, 356, 405. 15 Her allegations of disabling visual and mental limitations were contradicted by evidence of 16 her daily activities, including reading, crocheting, paying bills, counting change, managing 17 her finances, driving and shopping. Tr. 25, 27, 230-31, 251-52, 356, 405. Therefore, the 18 ALJ’s determination that plaintiff’s subjective complaints are not fully credible is supported 19 by substantial and specific evidence in the record. Importantly, plaintiff does not contest the 20 ALJ’s credibility finding. 21 Failure to rely on Ms. Fune’s opinion is also harmless in that the opinion is partially 22 based on the erroneous assumption that plaintiff was unable to return to work after her 23 surgery in 1999, when in fact plaintiff continued to work as a purchasing clerk for several 24 years following her surgery and, by her own admission, voluntarily stopped working in 25 December 2005 in order to help her parents move to New Mexico. Further, Ms. Fune was 26 also under the mistaken impression that plaintiff had been unable to use a computer after her 27 surgery, when instead a 2009 medical report indicated that plaintiff had been “typ[ing] on 28 the computer all day long.” Tr. 351, 276, 279. Finally, Ms. Fune conceded that there were -3- 1 entry level jobs that plaintiff could perform but for plaintiff’s self-assessed limitations due 2 to her back impairment. 3 We conclude that any error in the ALJ’s failure to discuss Ms. Fune’s report is 4 harmless given its inconsistencies with the rest of the record, and because it is largely based 5 on plaintiff’s subjective complaints, which the ALJ properly discounted. 6 7 8 IT IS ORDERED AFFIRMING the Commissioner’s decision denying disability benefits. DATED this 7th day of March, 2013. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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