Anderson v. Commission of Social Security

Filing 18

ORDER - IT IS THEREFORE ORDERED affirming the May 2, 2014, decision of the Administrative Law Judge, (R. at 31-40), as upheld by the Appeals Council on October 26, 2015 (R. at 1-4). IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly and close this matter. (See document for further details). Signed by Judge John J Tuchi on 3/29/17. (LAD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Glenn Anderson,

No. CV-15-08306-PCT-JJT
Plaintiff,

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v.

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ORDER

Commissioner of Social Security
Administration,

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Defendant.

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At issue is the denial of Plaintiff Glenn Anderson’s Application for Supplemental

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Security Income (“SSI”) by the Social Security Administration (“SSA”) under the Social

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Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking

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judicial review of that denial, and the Court now addresses Plaintiff’s Opening Brief

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(Doc. 12, “Pl.’s Br.”), Defendant Social Security Administration Commissioner’s

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Opposition (Doc. 16, “Def.’s Br.”), and Plaintiff’s Reply (Doc. 17, “Reply”). The Court

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has reviewed the briefs and Administrative Record (Doc. 11, R.) and now affirms the

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Administrative Law Judge’s decision (R. at 31-40) as upheld by the Appeals Council

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(R. at 1-4).

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I.

BACKGROUND

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Plaintiff filed an application for SSI on December 20, 2011, for a period of

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disability beginning March 1, 2005. (R. at 339-42.) Plaintiff’s claim was denied initially

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on September 20, 2012 (R. at 267-69), and on reconsideration on May 9, 2013 (R. at

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237). Plaintiff then testified at a hearing held before an Administrative Law Judge

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(“ALJ”) on February 11, 2014, at which Plaintiff asked to change his disability onset date

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to January 4, 2012. (R. at 48-88.) On May 2, 2014, the ALJ denied Plaintiff’s SSI

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application. (R. at 31-40.) On October 26, 2015, the Appeals Council upheld the ALJ’s

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decision. (R. at 1-4.) The present appeal followed.

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The Court has reviewed the voluminous medical evidence in its entirety and finds

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it unnecessary to provide a complete summary here. The pertinent medical evidence will

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be discussed in addressing the issues raised by the parties. In short, upon considering the

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medical records and opinions, the ALJ found that Plaintiff has severe impairments that

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include an adjustment disorder with depressed mood; polysubstance dependence; a

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history of major depressive disorder, bipolar disorder, catatonic schizophrenia, and a

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schizoid personality disorder; status post open reduction internal fixation of a left forearm

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fracture; left ankle fracture; left radius and ulna fracture; multilevel degenerative disc

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disease with mild stenosis; cervical spondylosis; ulnar nerve and peripheral neuropathy;

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radiculopathy; lumbago; sciatica; wrist osteopenia; central hernia; and left knee medial

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meniscus tear. (R. at 33.)

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II.

LEGAL STANDARD

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In determining whether to reverse an ALJ’s decision, the district court reviews

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only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236

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F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s

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disability determination only if the determination is not supported by substantial evidence

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or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial

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evidence is more than a scintilla, but less than a preponderance; it is relevant evidence

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that a reasonable person might accept as adequate to support a conclusion considering the

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record as a whole. Id. To determine whether substantial evidence supports a decision, the

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court must consider the record as a whole and may not affirm simply by isolating a

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“specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence

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is susceptible to more than one rational interpretation, one of which supports the ALJ’s

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decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954

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(9th Cir. 2002) (citations omitted).

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To determine whether a claimant is disabled for purposes of the Act, the ALJ

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follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of

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proof on the first four steps, but the burden shifts to the Commissioner at step five.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ

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determines whether the claimant is presently engaging in substantial gainful activity.

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20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id.

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At step two, the ALJ determines whether the claimant has a “severe” medically

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determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the

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claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether

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the claimant’s impairment or combination of impairments meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R.

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§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not,

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the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s residual

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functional capacity (“RFC”) and determines whether the claimant is still capable of

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performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not

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disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step,

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where he determines whether the claimant can perform any other work in the national

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economy based on the claimant’s RFC, age, education, and work experience. 20 C.F.R.

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§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

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Id.

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III.

ANALYSIS

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In this case, Plaintiff generally does not contest the ALJ’s consideration and

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weighing of Plaintiff’s treatment records and hearing testimony. Instead, Plaintiff asserts

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that the ALJ made a number of technical errors by (1) improperly concluding Plaintiff’s

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past relevant work included hand packager; (2) improperly concluding Plaintiff could

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work as a hand packager; (3) failing to find Plaintiff met the requirements under Listing

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12.03 for psychotic disorders; and (4) failing to find Plaintiff met the criteria for the

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application of Medical-Vocational Rule 201.14. (Pl.’s Br. at 18-23.)

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A.

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At step four of the disability evaluation process, an ALJ must determine if the

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plaintiff has the RFC to perform past relevant work, either as the plaintiff performed it or

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as it is generally performed in the national economy. See 20 C.F.R. § 404.1520(a)(4)(iv).

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Plaintiff argues that the ALJ erred by finding that the job of hand packager was past

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relevant work because Plaintiff did not engage in that work long enough to learn the job.

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(Pl.’s Br. at 18-19.) Furthermore, Plaintiff argues, even if the job of hand packager was

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appropriate for the ALJ to consider, the Vocational Expert (VE) erred in concluding that

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Plaintiff has the RFC to work as a hand packager because that job requires constant

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handling and fingering, which Plaintiff does not have the ability to do. (Pl.’s Br. at 19-

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20.)

Plaintiff’s Residual Functional Capacity

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Even if the ALJ erred in concluding that the job of hand packager was past

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relevant work, any error was harmless. At the hearing, the ALJ presented the VE with the

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hypothetical of

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an individual approaching advanced age with a limited education . . . and
with the same work experience as [Plaintiff] who can perform a full range
of light [work] with the following limitations. He can carry 20 pounds
occasionally; 10 pounds frequently; stand, walk, and sit six hours of an
eight-hour day; occasional balancing, stooping, kneeling, crouching,
crawling; never climbing ladders, ropes, or scaffolds. Or never climbing
period. Frequent reaching, handling, and fingering; avoid working with
heights and machinery; and with the following non-exertional limitations.
Can perform simple instructions; no fast-paced work; no intense
concentration for more than one hour without a five-minute break and
focus; and occasional interaction with co-workers, supervisors, and the
public. [Would] this person be able to perform his past relevant work either
as actually performed, or as those occupations, again, are performed in the
national economy?

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(R. at 83-84.) The VE responded that the individual could work in the hand packaging

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job as Plaintiff had performed it, which, as Plaintiff previously reported, required a

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minimal amount of handling and fingering and did not require him to lift more than ten

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pounds. (R. at 84, 370.) Moreover, the VE testified that the individual could perform

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other light, unskilled jobs in the national economy, including inspector, bench assembler,

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and cleaner/housekeeper. (R. at 84-85.) The VE’s assessment did not change when the

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ALJ added the condition that the individual may be absent or off task five percent of the

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time. (R. at 85.) Finally, on the condition that the individual may be absent or off task ten

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percent of the time, the VE reported that the individual could work as a

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cleaner/housekeeper or as a mail clerk. (R. at 85.)

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With the exception of the ALJ’s minimization of Plaintiff’s alleged psychiatric

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conditions, which the Court addresses below, Plaintiff does not challenge the RFC the

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ALJ applied to Plaintiff in the hypotheticals he presented to the VE or argue that the RFC

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determination was not supported by substantial evidence in the record. Even if the Court

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concluded that the ALJ erred in relying on Plaintiff’s previous job of hand packager as a

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baseline for his analysis, the RFC used was supported by substantial evidence, and the

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VE concluded that work in the national economy exists for an individual with Plaintiff’s

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RFC and other characteristics. As a result, any error on the part of the ALJ was harmless.

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See Tommasetti v. Astrue, 533 F.3d 1035, 1038, 1042-43 (9th Cir. 2008) (noting that the

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Court need not remand or reverse an ALJ’s decision if it is clear from the record that the

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error is “inconsequential to the ultimate nondisability determination”).

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B.

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Plaintiff next argues that the ALJ erred at step three of the disability evaluation

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process by failing to conclude that the objective medical and other findings satisfied the

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requirements of one of the listed impairments, Listing 12.03. (Pl.’s Br. at 20-22.) Listing

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12.03 is for “Schizophrenic, paranoid and other psychotic disorders” and provides that a

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plaintiff must meet specific requirements supported by medical documentation. See App.

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1 to Subpart P of 20 C.F.R. Part 404. Plaintiff argues that the medical evidence supports a

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conclusion that he has a “poverty of content of speech” associated with “flat affect,” and

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the ALJ erred when he failed to consider this evidence in combination with Plaintiff’s

Listing 12.03

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restrictions in maintaining concentration, persistence, or pace and his episodes of

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decompensation. (Pl.’s Br. at 21-22; Reply at 4-5.)

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As Defendant argues (Def.’s Br. at 7-12), in the absence of a “medically

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documented history of a chronic schizophrenic, paranoid, or other psychotic disorder of

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at least 2 years’ duration” under Listing 12.03 paragraph C—a finding that the record

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would not support—Listing 12.03 paragraph B criteria require that a plaintiff must have a

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record of marked difficulties in the activities of daily living; maintaining social

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functioning; maintaining concentration, persistence, or pace; or repeated episodes of

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decompensation, each of extended duration. Without meeting one of these paragraph B

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requirements, it is not dispositive that a plaintiff has a record of poverty of speech

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associated with flat affect under Listing 12.03 paragraph A.

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The ALJ concluded that Plaintiff has only mild restrictions in the activities of

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daily living and social functioning (R. at 34)—a conclusion that Plaintiff does not

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specifically contest—and the Court finds that those conclusions are supported by

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substantial evidence in the record. As for Plaintiff’s ability to maintain concentration,

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persistence, or pace, the ALJ concluded that Plaintiff has moderate—not marked—

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difficulties. (R. at 34.) While Plaintiff disputes this conclusion (Reply at 5), the Court

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finds that it is also supported by substantial evidence in the record. Specifically, the ALJ

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noted medical opinions finding that Plaintiff has a history of drug, alcohol and tobacco

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dependence and has frequently abused pain medications and alcohol, among other drugs.

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(R. at 33-38.) The ALJ cited the opinions of state agency psychological consultants that

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Plaintiff suffers from anxiety but, absent his substance abuse, Plaintiff has only mild to

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moderate difficulties maintaining concentration, persistence, and pace. (R. at 34, 39, 226,

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1383.) Plaintiff has not challenged the reliability of that evidence or the ALJ’s

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consideration of it, and the Court finds that it supports the ALJ’s conclusions.

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Plaintiff also disputes the ALJ’s conclusion that Plaintiff has experienced no

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episodes of decompensation, each of extended duration. (Reply at 4.) Specifically,

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Plaintiff asks the Court to consider Plaintiff’s 24 visits to the hospital between 2003 and

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2011 as episodes of decompensation. (Reply at 4.) However, as the ALJ notes in his

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decision (R. at 33-39) and Defendant points out in its brief (Def.’s Br. at 9-10), Plaintiff

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was not admitted in half of those hospital visits, three visits were for the purpose of

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attempting to refill prescriptions, and one visit was for physical injuries. (R. at 441-58,

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818-27, 867-68, 918-19, 929-30, 940-41, 978-97, 1048-51, 1101-02, 1149-52, 1190-92.)

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Only one psychiatric hospitalization lasted more than two weeks, in 2004 (R. at 506)—

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eight years before the alleged onset date. The Court finds that substantial evidence in the

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record supports the ALJ’s conclusion that Plaintiff has not experienced the requisite

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episodes of decompensation, each of extended duration, to meet the criteria of Listing

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12.03 paragraph B. Because the medical evidence does not support a finding that Listing

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12.03 paragraph B criteria are met, the ALJ did not err in declining to find Plaintiff

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disabled under Listing 12.03.

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C.

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Finally, Plaintiff argues that the ALJ erred by not applying Medical-Vocational (or

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“GRID”) Rule 201.14—which considers a claimant of advancing age—in his analysis,

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essentially arguing that the ALJ improperly failed to consider Plaintiff’s age of nearly 50

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years old in assessing Plaintiff’s ability to work in the national economy. (Pl.’s Br. at 22-

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above, the ALJ specifically tailored the hypotheticals he posed to the VE to account for

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Plaintiff’s RFC as well as his prior work experience and advancing age. The Court also

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already noted that the objective medical record supports the RFC applied, and that

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conclusion does not change by weighing the assessment of Dr. Chad Hartley—which

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Plaintiff submitted to the Appeals Council over a year after the date of the ALJ’s decision

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(and three years after the alleged onset date)—against Plaintiff’s treatment records and

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the other objective medical evidence. As noted above, the VE considered Plaintiff’s age

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and prior work experience in concluding that Plaintiff is capable of performing jobs in the

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national economy. Because the ALJ’s hypotheticals were specifically tailored to

Plaintiff’s Age

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Plaintiff’s capacity and attributes, the ALJ did not err in declining to reference Rule

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201.14.

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Plaintiff raises no materially harmful error on the part of the ALJ, and the Court

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must therefore affirm the SSA’s decision denying Plaintiff’s Application for SSI benefits

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under the Act.

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IT IS THEREFORE ORDERED affirming the May 2, 2014, decision of the

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Administrative Law Judge, (R. at 31-40), as upheld by the Appeals Council on

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October 26, 2015 (R. at 1-4).

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IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment
accordingly and close this matter.
Dated this 29th day of March, 2017.

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Honorable John J. Tuchi
United States District Judge

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