Antunez v. Colvin

Filing 21

ORDER - The decision of the Commissioner is reversed and remanded for further proceedings consistent with this decision and the Clerk shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 05/01/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria Antunez,

No. CV-16-01072-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff’s appeal of the denial of her application for

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social security disability benefits by the Defendant.

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I.

Standard of Review

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The decision of Administrative Law Judge (“ALJ”) to deny benefits will be

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overturned “only if it is not supported by substantial evidence or is based on legal error.”

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Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted).

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“Substantial evidence” means more than a mere scintilla, but less than a preponderance.

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Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);

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see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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II.

Issues on Appeal

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On appeal, Plaintiff raises three claims of error: 1) ALJ erred in concluding

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Plaintiff could perform her past work; 2) the ALJ erred in not crediting Plaintiff’s treating

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physicians; and 3) the ALJ erred in not crediting Plaintiff’s symptom testimony.

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Although in the opening brief Plaintiff pursues all three claims of error, in her reply brief,

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she relies only on the first theory.

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A.

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As to Plaintiff’s first claim of error – that the ALJ erred in concluding that

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Plaintiff could perform her past work – Defendant concedes error. (Doc. 18 at 3).

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However, Defendant argues that the error was harmless. (Id.).

Plaintiff’s past work

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Specifically, the ALJ found that:

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The record indicated that the claimant worked as a cashier/checker
from June of 1997 until January of 2000, and the claimant worked as a
garment sorter from January of 2003 until April of 2003. The record also
indicated that the claimant received income at substantial gainful activity
level at these positions.

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(Doc. 13-3 at 17).

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The undisputed facts on appeal are that, from 1997-2000, Plaintiff worked as a

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meat packer, not as a cashier. (Doc. 19 at 3). Plaintiff argues, and Defendant does not

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dispute, that the cashier position would be light work, at level 3, and the meat packer

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position would be medium work, at level 2. (Doc. 16 at 25). Further, while Plaintiff did

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work as a garment sorter from January 2003 to April 2003, her income at that position

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did not rise to the substantial gainful activity level. (Doc. 19 at 3). Thus, the ALJ’s

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factual findings regarding the 1997-2000 job and the 2003 job are not supported by the

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record.

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Defendant argues, however, that these errors were harmless because Plaintiff

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worked at a job as a cashier and garment sorter in 2006 and 2007 and earned income at

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the substantial gainful activity level in that position. (Doc. 18 at 4). Thus, Defendant

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concludes that while the ALJ’s articulated facts are incorrect, the record supports the

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ALJ’s ultimate conclusion.

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Plaintiff replies and argues that the errors are not harmless for two reasons. First,

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Plaintiff argues that as a matter of law, defense counsel cannot supply post hoc

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rationalizations to substitute for the actual reasons given by the ALJ. (See Doc. 19 at 2

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and cases cited therein). Second, Plaintiff argues that, as a matter of fact, the 2006-2007

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job on which Defendant now relies was a composite job that encompasses more than one

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job listed in the Dictionary of Occupational Titles and included more than only cashiering

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and garment sorting. (Doc. 19 at 4-5). Plaintiff concludes that because there was no

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testimony before the ALJ regarding whether Plaintiff could do all the components of the

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2006-2007 job, it would be error for this Court to conclude that Plaintiff can perform this

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job.

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B.

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The Court agrees with Plaintiff that on this record, this Court cannot determine

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whether Plaintiff can perform her past work at the substantial gainful activity level. In

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her reply, Plaintiff seeks to have this matter, “remanded for further administrative

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proceedings, including but not limited to, a new administrative hearing and ALJ

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decision.” (Doc. 19 at 6).

Conclusion

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As discussed above, in her opening brief, Plaintiff raised two additional claims of

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error. Because this Court has determined that remand is required, and because Plaintiff

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did not continue to pursue these additional two theories in her reply, this Court will not

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reach them in this appeal. Thus, while the Court agrees that a new administrative

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hearing, additional vocational expert testimony, and a new ALJ decision is required on

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remand to address the errors found herein, the Court will not order a de novo hearing on

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all issues. However, to the extent necessary to determine whether Plaintiff can perform

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her past work, the ALJ has the discretion to conduct a de novo hearing.

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Based on the foregoing,

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IT IS ORDERED that the decision of the Commissioner is reversed and

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remanded for further proceedings consistent with this decision and the Clerk of the Court

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shall enter judgment accordingly.1

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Dated this 1st day of May, 2017.

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To the extent a mandate is require, the judgment shall serve as the mandate.
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