Wait v. Commissioner of Social Security Administration

Filing 19

ORDER - that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Neil V Wake on 1/25/2016. (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 Kathryn Wait, 10 11 No. CV-15-08033-PCT-NVW Plaintiff, ORDER v. 12 13 Carolyn W. Colvin, Acting Commissioner of Social Security, 14 Defendant. 15 16 Plaintiff Kathryn Wait seeks review under 42 U.S.C. § 405(g) of the final decision 17 of the Commissioner of Social Security (“the Commissioner”), which denied her 18 disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act. 19 Because the decision of the Administrative Law Judge (“ALJ”) is supported by 20 substantial evidence and is not based on legal error, the Commissioner’s decision will be 21 affirmed. 22 I. BACKGROUND 23 A. 24 Plaintiff was born in March 1958. She has a college degree and worked in several 25 skilled jobs, involving light to sedentary work. On August 13, 2008, Plaintiff suffered a 26 back injury while working as a dormitory supervisor. 27 September 28, 2010. In October 2010, she had lumbar fusion surgery, but she continues 28   Factual Background She has not worked since 1 to have chronic back pain. In April 2012, Plaintiff had a left knee replacement, which 2 improved her knee pain. 3 B. Procedural History 4 On August 23, 2011, Plaintiff applied for disability insurance benefits alleging 5 disability beginning September 28, 2010. On October 8, 2013, she appeared with her 6 attorney and testified at a video hearing before the ALJ. A vocational expert also 7 testified. On October 18, 2013, the ALJ issued a decision that Plaintiff was not disabled 8 within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s 9 request for review of the hearing decision, making the ALJ’s decision the 10 Commissioner’s final decision. On March 11, 2015, Plaintiff sought review by this 11 Court. 12 II. STANDARD OF REVIEW 13 The district court reviews only those issues raised by the party challenging the 14 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 15 may set aside the Commissioner’s disability determination only if the determination is 16 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 18 preponderance, and relevant evidence that a reasonable person might accept as adequate 19 to support a conclusion considering the record as a whole. Id. As a general rule, 20 “[w]here the evidence is susceptible to more than one rational interpretation, one of 21 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 22 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted); accord Molina v. Astrue, 23 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more 24 than one rational interpretation, we must uphold the ALJ’s findings if they are supported 25 by inferences reasonably drawn from the record.”). 26 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 27 To determine whether a claimant is disabled for purposes of the Social Security 28 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears -2- 1 the burden of proof on the first four steps, but the burden shifts to the Commissioner at 2 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 3 At the first step, the ALJ determines whether the claimant is engaging in 4 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 5 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 6 has 7 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 8 three, the ALJ considers whether the claimant’s impairment or combination of 9 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 10 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 11 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 12 claimant’s residual functional capacity and determines whether the claimant is still 13 capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not 14 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 15 where he determines whether the claimant can perform any other work based on the 16 claimant’s residual functional capacity, age, education, and work experience. 17 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 18 disabled. Id. a “severe” medically determinable physical or mental impairment. 19 At step one, the ALJ found that Plaintiff meets the insured status requirements of 20 the Social Security Act through December 31, 2015, and that she has not engaged in 21 substantial gainful activity since September 28, 2010. At step two, the ALJ found that 22 Plaintiff has the following severe impairments: status post fusion at L3-L5, status post 23 left knee replacement, and lumbar radiculopathy. At step three, the ALJ determined that 24 Plaintiff does not have an impairment or combination of impairments that meets or 25 medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 26 At step four, the ALJ found that Plaintiff: 27 has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that the claimant can never climb ladders, 28 -3- 1 ropes or scaffolds. She can occasionally climb ramps or stairs and can occasionally balance, stoop, crouch, kneel and crawl. She should avoid concentrated exposure to extreme cold, extreme heat, wetness or humidity, excessive noise, excessive vibration, hazardous machinery and unprotected heights. 2 3 4 5 6 7 8 9 10 11 12 13 14 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). The ALJ further found that Plaintiff is capable of performing past relevant work as a case manager and dorm supervisor. IV. ANALYSIS A. The Opinions of Drs. Ring and Handal Do Not Require a Sit/Stand Option. 1. Legal Standard 15 A residual functional capacity finding involves a detailed assessment of how a 16 claimant’s medical impairments affect her ability to work. In determining a claimant’s 17 residual functional capacity, the ALJ “must consider all relevant evidence in the record, 18 including, inter alia, medical records, lay evidence, and ‘the effects of all symptoms, 19 including pain, that are reasonably attributed to a medically determinable impairment.’” 20 Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006). In deciding the weight to give any 21 medical opinion, the ALJ considers not only whether the source has a treating or 22 examining relationship with the claimant, but also whether the treatment or examination 23 is related to the alleged disability, the length of the relationship, frequency of 24 examination, supporting evidence provided by the source, and medical specialization of 25 the source. 20 C.F.R. § 404.1527(c). The Commissioner considers opinion evidence 26 along with other evidence regarding the nature and severity of a claimant’s impairments 27 and a claimant’s residual functional capacity. 20 C.F.R. §§ 404.1527(d). 28 -4- 1 2. Record Evidence 2 Plaintiff contends the ALJ erred by saying he “assigned significant weight” to the 3 opinions of examining physician Dr. Joseph Ring and state agency reviewing physician 4 Dr. Kathleen Handal without including a sit/stand option in the residual functional 5 capacity assessment. The ALJ stated that both Drs. Ring and Handal opined that Plaintiff 6 could perform sedentary work1 and these opinions were assigned great weight and 7 supported by the objective medical evidence. 8 Dr. Ring examined Plaintiff on December 3, 2011. He reported that Plaintiff 9 drove herself to the examination and was able to do all of her activities of daily living at 10 home except for vacuuming. He noted that Plaintiff reported that her lumbar fusion 11 surgery dramatically improved the pain going down her right leg, but she continued to 12 have significant back pain. Plaintiff also reported that if she sat for more than 5 to 10 13 minutes, her back pain would become very severe. Dr. Ring observed that Plaintiff 14 changed positions very often during the examination and seemed to have pain whenever 15 she sat or stood in one position for more than five or six minutes. He opined that Plaintiff 16 “could do approximately five hours intermittently during the day of standing and walking 17 as long as she changes positions every 10 to 15 minutes.” Dr. Ring further opined that 18 Plaintiff “has no specific limitations in the duration of sitting, but she has to get up and 19 change positions every 10 to 15 minutes at a minimum because of significant lower back 20 pain.” Although he said she must “get up,” Dr. Ring did not opine that Plaintiff must 21 alternate sitting and standing, and he expressly did not limit the length of time Plaintiff 22 can sit. 23 On December 23, 2011, Dr. Handal reviewed Dr. Ring’s medical source statement 24 and other medical evidence. She summarized Dr. Ring’s opinion as limiting Plaintiff’s 25 walking and standing to 5 hours intermittently in an 8-hour day with changes in position 26 27 1 A job may be considered “sedentary” if it involves sitting with occasional walking and standing. 20 C.F.R. § 404.1567(a). 28 -5- 1 every 10-15 minutes and imposing no sitting limitations. Dr. Handal gave Dr. Ring’s 2 opinion “great weight.” Dr. Handal opined that Plaintiff could stand and/or walk with 3 normal breaks for a total of 5 hours and sit with normal breaks for about 6 hours in an 4 8-hour workday. 5 The ALJ did not mischaracterize Drs. Ring and Handal’s opinions. Neither Dr. 6 Ring nor Dr. Handal opined that Plaintiff required a sit/stand option. Both opined that 7 Plaintiff had no limitation in duration of sitting. Both opined that she needed to be able 8 to change positions while standing and walking. Neither opined that Plaintiff could 9 perform sedentary work only if she were permitted to stand at certain intervals. 10 11 Therefore, it was not error for the ALJ’s residual functional capacity assessment to not include a sit/stand option limitation. 12 B. Plaintiff Did Not Prove She Cannot Perform Past Relevant Work. 13 At step four, Plaintiff had the burden of showing she can no longer perform her 14 past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ 15 may conclude a claimant can perform past relevant work by finding she is able to 16 perform the actual functional demands and duties of a particular past relevant job or she 17 is able to perform the functional demands and duties of the occupation as generally 18 required by employers throughout the national economy. Id. at 845. Thus, at step four, 19 Plaintiff had the burden to prove she cannot perform her prior relevant work as actually 20 performed and as generally performed in the national economy. Carmickle v. Comm’r, 21 Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). 22 The ALJ may assess a claimant’s past relevant work as actually performed by 23 considering a properly completed vocational expert’s report and/or the claimant’s own 24 testimony. Pinto, 249 F.3d at 845. The Dictionary of Occupational Titles usually is the 25 best source for how a job is generally performed. Id. 26 Plaintiff described her job as a case manager as assisting families and individuals 27 who were dependent on drugs and/or alcohol to overcome their addiction, obtain 28 employment, and reunite with their families. She reported that her job required using a -6- 1 computer and technical knowledge and skills and it included writing and completing 2 reports. She said that as a case manager she walked no more than 1 hour per day, stood 3 no more than 1 hour per day, and sat 6 or more hours per day. She said the heaviest 4 weight she lifted was less than 10 pounds, and the weight she frequently lifted was less 5 than 10 pounds. She did not say that during her work as a case manager she was required 6 to sit without changing positions. 7 Plaintiff said as a dormitory supervisor she supervised an average of 5 dormitory 8 employees per shift and she oversaw the safety and confinement of dormitory student 9 residents. She used a computer and wrote and completed reports. She said that as a 10 dormitory supervisor she walked 2 hours per day, stood 3 hours per day, and sat 4 hours 11 per day. She did not say that during her work as a dormitory supervisor she was required 12 to sit without changing positions. 13 At the administrative hearing, the vocational expert classified both the dormitory 14 supervisor and the case manager positions as skilled sedentary for which Plaintiff had 15 acquired the requisite skill levels. In response to a hypothetical posed by the ALJ, the 16 vocational expert testified that an individual who could sit for 6 of 8 hours in a workday 17 and stand and walk 5 of 8 hours in a workday would be able to perform all of Plaintiff’s 18 past relevant jobs. The vocational expert testified that an individual could perform the 19 dorm supervisor and case manager jobs even if she were restricted to sedentary work with 20 the use of a handheld assistive device for ambulation and balance. The vocational expert 21 testified that her testimony was consistent with the Dictionary of Occupational Titles and 22 her training, education, and experience in the field. Thus, substantial evidence supported 23 the ALJ’s finding that Plaintiff is capable of performing past relevant work as a case 24 manager and a dormitory supervisor. 25 As found above, it was not error for the ALJ’s residual functional capacity 26 assessment to not include a sit/stand option limitation. Therefore, the vocational expert’s 27 testimony regarding a hypothetical individual restricted to sedentary work with a sit/stand 28 option is irrelevant. -7- 1 IT IS THEREFORE ORDERED that the final decision of the Commissioner of 2 Social Security is affirmed. 3 terminate this case. 4 The Clerk shall enter judgment accordingly and shall Dated this 25th day of January, 2016. 5 6 7 Neil V. Wake United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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