United States District Court, D. Alaska
MARY F. ZWOLLE, Plaintiff,
v.
NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.
ORDER
H.
Russel Holland United States District Judge
This is
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 42 U.S.C. §§ 401-434. Plaintiff Mary
F. Zwolle has timely filed her opening brief, [1] to which
defendant Nancy A. Berryhill has responded.[2] Oral argument was
not requested and is not deemed necessary.
Procedural
Background
On
September 22, 2010, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, alleging that she became disabled on October 9, 2009. On
March 23, 2011, plaintiff's application was denied.
Plaintiff did not request further review of this denial.
On
December 19, 2013, plaintiff again filed an application for
disability benefits under Title II of the Social Security
Act, alleging that she became disabled on October 20, 2009.
However, because the previous determination dated March 23,
2011 is final and binding, the relevant onset date for
purposes of the application under review is March 24, 2011.
Plaintiff
alleges that she is disabled due to her back, bilateral legs,
and stomach. Plaintiff's application was initially denied
on April 9, 2014. After a hearing on February 19, 2015, an
administrative law judge (ALJ) denied plaintiff's claim.
On July 29, 2016, the Appeals Council denied plaintiff's
request for review, thereby making the ALJ's March 27,
2015 decision the final decision of the Commissioner. On
September 28, 2016, plaintiff commenced this action in which
she asks the court to find that she is entitled to disability
benefits.
General
Background
Plaintiff
was born on July 31, 1976. She was 38 years old at the time
of the administrative hearing. Plaintiff has a ninth grade
education. Plaintiff has three children. At the time of the
hearing, plaintiff was living with her significant other and
one of her children. Plaintiff's past relevant work
includes work as a hospital janitor, laundry worker, cashier,
hostess, and test driver.
The
ALJ's Decision
The ALJ
first determined that plaintiff “last met the insured
status requirement of the Social Security Act on December 31,
2014.”[3] Based on plaintiff's date last insured
and her previous application for benefits, the ALJ noted that
“this decision is relevant only to the period beginning
March 24, 2011 (the potential onset date) through December
31, 2014, the date last insured.”[4]
The ALJ
then applied the five-step sequential analysis used to
determine whether an individual is disabled.[5]
At step
one, the ALJ found that plaintiff “did not engage in
substantial gainful activity during the period from the
potential onset date of March 24, 2011 through her date last
insured of December 31, 2014....”[6]
At step
two, the ALJ found that plaintiff “had the following
severe impairments: degenerative disk and facet disease of
the lumbar spine, status-post laminotomy, diskectomy, and
fusion....”[7]
At step
three, the ALJ found that “[t]hrough the date late
insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1....”[8] The ALJ considered Listing
1.04 (disorders of the spine).[9]
“Between steps three and four, the ALJ must, as an
intermediate step, assess the claimant's RFC.”
Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219,
1222-23 (9th Cir. 2009). The ALJ found that through the date
last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(a) except the claimant is limited to standing and
walking for up to 4 hours and sitting up to 6 hours in an
8-hour workday; a sit/stand option allowing the claimant to
alternate sitting or standing positions throughout the day;
occasional climbing of ladders, ropes, and scaffolds;
occasional stooping, kneeling, crouching, and crawling; and
must avoid concentrated exposure to excessive
vibration.[10]
The ALJ found plaintiff's pain and symptom statements
less than credible because they were “not supported by
the objective evidence, consistent examination findings, or
her treatment provider's or evaluators'
opinions.”[11] The ALJ also found plaintiff's pain
and symptom statements less than credible because
“[t]he medical evidence of record ... suggests
symptom[] exaggeration.”[12] The ALJ also noted “that
the medical evidence of record reveals a 10 month gap in
treatment from September 2013 to July 2014, apparently
related to a lack of insurance....”[13]
“However, ” the ALJ stated that if “the
claimant's symptoms were as severe as alleged, I would
expect to see emergency room visits if for no other reason
than to obtain medications.”[14] The ALJ also noted that
plaintiff had “alleged that her medications cause
drowsiness or sleepiness and
dizziness....”[15] However, the ALJ found “no
credible evidence that the claimant's prescription
medications cause more than minimal, if any, limitations on
her ability to perform basic work
activities.”[16] The ALJ also found plaintiff's pain
and symptom statements less than credible because her work
history showed that she “worked only sporadically prior
to the alleged disability onset date” and this
“raises a question as to whether the claimant's
continuing unemployment is actually due to medical
impairments....”[17]
The ALJ
gave Mr. Pasek's February 2015 assessment[18] no weight
because he was not an accepted medical source and because his
findings were not supported by the objective medical
evidence.[19] The ALJ also noted that Mr. Pasek's
assessment was “after the date last insured of December
31, 2014[.]”[20]
At step
four, the ALJ found that “[t]hrough the date last
insured, the claimant was unable to perform any past relevant
work....”[21]
At step
five, the ALJ found that “[t]hrough the date[] last
insured, considering the claimant's age, education, work
experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy
that the claimant could have
performed....”[22] This finding was based on the vocational
expert's testimony[23] that plaintiff could work as a small
parts assembler, ticket taker, or tanning salon
attendant.[24]
Thus,
the ALJ concluded that “[t]he claimant was not under a
disability, as defined in the Social Security Act, at any
time from March 24, 2011, the potential onset date, through
December 31, 2014, the date last
insured....”[25]
Standard
...