Zwolle v. Berryhill

          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 ...