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Flanigan v. Colvin

United States District Court, D. Nevada

May 28, 2014

IRIS D. FLANIGAN, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Defendant.

REPORT OF FINDINGS AND RECOMMENDATION

PEGGY A. LEEN, Magistrate Judge.

This case involves judicial review of administrative action by the Commissioner of Social Security denying Plaintiff Iris D. Flanigan's claim for disability insurance benefits under Title II of the Social Security Act (the "Act").

BACKGROUND

On July 24, 2009, Plaintiff filed an application for disability insurance benefits, alleging she became disabled on August 25, 2007, as amended at the hearing. AR[2] 20, 36. The Social Security Administration ("SSA") denied Plaintiff's application initially and on reconsideration. AR 73-79, 84-86. A hearing before an administrative law judge ("ALJ") was held on May 24, 2011. AR 31-72. In a decision dated May 27, 2011, the ALJ found Plaintiff was not disabled. AR 20-26. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied review. AR 1-4.

On November 5, 2012, Plaintiff filed an Application to Proceed In Forma Pauperis (Dkt. #1) and submitted a Complaint (Dkt. #3) in federal court, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). The Commissioner filed her Answer (Dkt. #10) on March 7, 2013. Plaintiff filed a Motion for Remand (Dkt. #13) on April 9, 2013. The Commissioner filed an Opposition and Cross-Motion for Summary Judgment (Dkt. #14) on May 9, 2013. The court has considered the Motion to Remand and the Opposition and Cross-Motion.

DISCUSSION

I. Judicial Review of Disability Determination

District courts review administrative decisions in social security benefits cases under 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). The statute provides that after the Commissioner of Social Security has held a hearing and rendered a final decision, a disability claimant may seek review of the Commissioner's decision by filing a civil lawsuit in federal district court in the judicial district where the disability claimant lives. See 42 U.S.C. § 405(g). That statute also provides that the District Court may enter, "upon the pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The Ninth Circuit reviews a decision of a District Court affirming, modifying, or reversing a decision of the Commissioner de novo. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2003).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); see also Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner's findings may be set aside if they are based on legal error or not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005). In determining whether the Commissioner's findings are supported by substantial evidence, the court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

Under the substantial evidence test, the Commissioner's findings must be upheld if supported by inferences reasonably drawn from the record. Batson, 359 F.3d at 1193. When the evidence will support more than one rational interpretation, the court must defer to the Commissioner's interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Flaten v. Sec'y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue before the court is not whether the Commissioner could reasonably have reached a different conclusion, but whether the final decision is supported by substantial evidence.

It is incumbent on the ALJ to make specific findings so that the court does not speculate as to the basis of the findings when determining if the Commissioner's decision is supported by substantial evidence. Mere cursory findings of fact without explicit statements as to what portions of the evidence were accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). The ALJ's findings "should be as comprehensive and analytical as feasible, and where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions are based." Id.

II. Disability Evaluation Process

The claimant has the initial burden of proving disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert. denied, 517 U.S. 1122 (1996). To meet this burden, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant must provide "specific medical evidence" to support his or her claim of disability. If a claimant establishes an inability to perform his or her prior work, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful work that exists in the national economy. Batson, 157 F.3d at 721.

The ALJ follows a five-step sequential evaluation process in determining whether an individual is disabled. See 20 C.F.R. § 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If at any step, the ALJ makes a finding of disability or non-disability, no further evaluation is required. See 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); see also Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The first step requires the ALJ to determine whether the individual is currently engaging in substantial gainful activity ("SGA"). See 20 C.F.R. §§ 404.1520(b) and 416.920(b). SGA is defined as work activity that is both substantial and gainful; it involves doing significant physical or mental activities, usually for pay or profit. See 20 C.F.R. §§ 404.1572(a)-(b) and 416.972(a)-(b). If the individual is currently engaging in SGA, then a finding of not disabled is made. If the individual is not engaging in SGA, then the analysis proceeds to the second step.

The second step addresses whether the individual has a medically-determinable impairment that is severe or a combination of impairments that significantly limits him or her from performing basic work activities. See 20 C.F.R. §§ 404.1520(c) and 416.920(c). An impairment or combination of impairments is not severe when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on the individual's ability to work. See 20 C.F.R. §§ 404.1521 and 416.921; Social Security Rulings ("SSRs") 85-28, 96-3p, and 96-4p.[3] If the individual does not have a severe medically-determinable impairment or combination of impairments, then a finding of not disabled is made. If the individual has a severe medically-determinable impairment or combination of impairments, then the analysis proceeds to the third step.

Step three requires the ALJ to determine whether the individual's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appedix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. If the individual's impairment or combination of impairments meet or equal the criteria of a listing and meet the duration requirement (20 C.F.R. §§ 404.1509 and 416.909), then a finding of disabled is made. See 20 C.F.R. §§ 404.1520(h) and 416.920(h). If the individual's impairment or combination of impairments does not meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to the next step.

Before considering step four of the sequential evaluation process, the ALJ must first determine the individual's residual functional capacity ("RFC"). See 20 C.F.R. §§ 404.1520(e) and 416.920(e). RFC is a function-by-function assessment of the individual's ability to do physical and mental work-related activities on a sustained basis despite limitations from impairments. See SSR 96-8p. In making this finding, the ALJ must consider all the relevant evidence such as symptoms and the extent to which they can reasonably be accepted as consistent with the objective medical evidence and other evidence. See 20 C.F.R. §§ 404.1529 and 416.929; SSRs 96-4p and 96-7p. To the extent that statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. The ALJ must also consider opinion evidence in accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.

The fourth step requires the ALJ to determine whether the individual has the RFC to perform his past relevant work ("PRW"). See 20 C.F.R. §§ 404.1520(f) and 416.920(f). PRW means work performed either as the individual actually performed it or as it is generally performed in the national economy within the last fifteen years or fifteen years prior to the date that disability must be established. In addition, the work must have lasted long enough for the individual to learn the job and to perform it as SGA. See 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), and 416.965. If the individual has the RFC to perform his past work, then a finding of not disabled is made. If the individual is unable to perform any PRW or does not have any PRW, then the analysis proceeds to the fifth and final step.

Step five requires the ALJ to determine whether the individual is able to do any other work considering his residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g) and 416.920(g). If he or she can do other work, then a finding of not disabled is made. Although the individual generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Commissioner. The Commissioner is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the individual can do. Yuckert, 482 U.S. at 141-42.

II. Factual Background.

A. Testimony at Administrative Hearing.

Plaintiff appeared and testified before ALJ Barry Jenkins in Las Vegas, Nevada, on May 24, 2011, with her attorney, Nicole Steinhaus. AR 31. Vocational expert Robin Generaux also appeared and testified. Id.

Plaintiff was born on July 8, 1956, and at the time of the administrative hearing, she was fifty-one years old. AR 36. Plaintiff lives with her son and husband. AR 39. At the time of the hearing, she and her husband were separated, and he owned the house in which they lived. AR 39-40. Plaintiff quit school after the tenth grade. AR 40. She has been jailed once for prostitution. Id.

Plaintiff was last employed in 2005 with Crimebusters, where she did domestic cleaning and lifting bags. AR 46. Plaintiff testified she stopped working in 2005 because her limbs, back, and abdomen were all hurting and sore. Id. Prior to that, Plaintiff had multiple jobs, including as: a porter for Stratosphere Gaming; a meat slicer and weigher in the meat department of Smith's Food and Drug Center; a security officer for Allied Security; a cashier and stocker at Midget Market, a grocery store; a cashier, stocker, cleaner, and food preparer at Green Valley Grocery; a maid for Molly Maid Service; a supervisor at Days Inn, where she made beds, cleaned, and pushed carts; a supervisor at Best Western Hotel, where she supervised the housekeepers; a housekeeper at Sherry's Ranch; a janitor for the Nye County School District; and a cashier/stocker/cleaner at D&T Fireworks. AR 40-46. In all of her previous employment, Plaintiff did heavy lifting and physical work that caused her pain in her limbs, back and abdomen. AR 47. Plaintiff testified that she can no longer lift twenty-five to fifty pounds by herself. AR 46.

While Plaintiff was employed at Days Inn, she was involved in an accident, where a cart flipped over onto her, causing injury to her left shoulder and hip. AR 43.

Plaintiff testified that she is unable to work because she no longer can lift objects of any significant weight, that her left arm is worn down due to osteoporosis and arthritis and the medications she is prescribed. AR 51. In addition, the medications she takes affect her alertness and prevent her from operating machinery. Id. Plaintiff testified that she uses orthopedic devices such as a back brace to relieve her symptoms. AR 51-52. She testified that she can only sit for ten to fifteen minutes before back spasms occur, and she must stand for five minutes to stop the spasm. AR 64. These back spasms occur often and at random. Id.

Plaintiff testified that on a normal day, she wakes up, checks on the dogs, and gets dressed. AR 54. She then sits down and watches television and talks on the phone. Id. She does not do any lifting, cleaning, or strenuous activity, and if something needs to be done, she calls for her son. Id. She sometimes washes dishes, but she must sit down to do them. AR 55. She does not cook often, but when she does, it is limited to soup and microwaveable items. Plaintiff testified that she can no longer stand and cook because it hurts her back. Id.

Plaintiff's son and his wife come over about every two weeks and help her with cleaning, laundry, and taking care of the animals. AR 54-55. Her son, daughter-in-law, and husband also help her get dressed, get in and out of the shower, and get ready for the day. AR 61-62.

Plaintiff testified that at the time of the hearing, she did not smoke or consume alcohol or drugs, but she admitted that she has used cocaine and marijuana in the past. AR 52.

Robin Generaux, a vocational expert, also testified. AR 65. She described Plaintiff's PRW as a cashier, housekeeper, and security guard as light work; Plaintiff's PRW as a janitor, housekeeping supervisor, and porter as medium work; and Plaintiff's PRW as a stock clerk as heavy work. Ms. Generaux also testified that employment as a housekeeper is usually preformed as medium work. Id. The ALJ asked whether a person of claimant's age, education, and experience who was capable of performing at the light exceptional level and was ...


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