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Jose v. Colvin

United States District Court, D. Hawaii

November 1, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          J. Michael Seabright Chief United States District Judge


         This is an action brought under 42 U.S.C. § 405(g) to review a final decision of the Acting Commissioner of Social Security, Carolyn W. Colvin (the “Commissioner, ” or “Defendant”). Ronald James Jose (“Jose” or “Plaintiff”) appeals Defendant's adoption of Administrative Law Judge Jennifer M. Horne's (“ALJ Horne”) September 25, 2014 decision finding Plaintiff not disabled under the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f (the “September 25 Decision”). Plaintiff argues that the September 25 Decision must be overturned because it is not based on substantial evidence and the record is incomplete. Based on the following, the court AFFIRMS the Commissioner's denial of benefits to Plaintiff because the September 25 Decision is supported by substantial evidence and ALJ Horne did not breach any duty to further develop the record.


         A. Factual Background

         Plaintiff, born in 1958, worked as a heavy machine operator and truck driver from 1975 through 2011. Admin. R. (“AR”) at 44, 77, 143-45, ECF No. 20. At the end of 2011, Plaintiff was laid off and then began taking care of his wife, who passed away from cancer in 2012. Id. at 46-47.

         Plaintiff filed for Social Security and Disability Insurance benefits on June 29, 2012, id. at 134-42, alleging disability since January 15, 2012, id. at 77. His claim was denied twice -- once on January 24, 2013, and again upon reconsideration on December 3, 2013. Id. at 76-109. On December 20, 2013, Plaintiff filed a request for a hearing. Id. at 110. A hearing was conducted on April 14, 2014, before ALJ Horne, in which Plaintiff and vocational expert Harlan S. Stock testified. Id. at 23. Including the information summarized above, the evidence before ALJ Horne relevant to this appeal includes the following:

         1. Plaintiff's Testimony and Statements

         Plaintiff testified that he worked as a heavy machine operator and truck driver, id. at 44, until he was laid off in 2011 because his employer “sent the machines back to Kauai, ” id. at 46. At that point, he began caring for his wife, who had cancer, until she passed away in 2012. Id. at 46-47. He testified that he could not return to his old jobs “since [his] back started hurting.” Id. at 49.

         Plaintiff admitted that, as of January 2013, he could walk for half a mile and lift 100 pounds. Id. However, his back got worse five months before his April 2014 hearing, and he no longer had the same ability. Id. at 50. The pain manifested between his hip and pelvis on his left side, reaching down his left leg. Id. at 53.

         Plaintiff testified that the pain is not present all the time, but hits him “all of a sudden” after he stands and walks. Id. This has led to his use of a cane, which allows him to “get little bit relief [sic].” Id. at 54. He further testified that he can stand for about 10 or 20 minutes, walk for about 10 minutes, and lift 20 pounds. Id. at 54-55. He cooks, shops, bathes, dresses, and shaves on his own, and takes his grandsons to go shooting. Id. at 56-60.

         2. Dr. Joseph Bratton's Psychological Evaluation

         Dr. Joseph Bratton conducted a psychological evaluation of Plaintiff on November 25, 2013. Id. at 408. Generally, Dr. Bratton observed that Plaintiff “seemed physically capable, showing no obvious gross difficulties in ambulating while here” but “his handwriting was horrible, suggesting some nerve/brain damage.” Id. at 410. Additionally, he was “always polite and cooperative” and his thoughts “seemed logical and linear, with no sign of thought disorder; no delusional thinking.” Id.

         After administering several psychological tests, Dr. Bratton concluded that Plaintiff: “could understand and yet not recall mostly oral instructions, ” “could not currently attend a low stress job site, ” “could not work with coworkers and a supervisor, with limited contact, ” and “could not presently adapt to the normal workplace psychological requirements.” Id. at 412-13.

         B. Procedural Background

         On September 25, 2014, ALJ Horne issued her decision finding Plaintiff not disabled. Id. at 23-31. The Appeals Council subsequently rejected Plaintiff's request to review the September 25 decision, and the September 25 decision became the final decision of the Commissioner on December 18, 2015. Id. at 1-4.

         On February 18, 2016, Plaintiff filed his Complaint seeking judicial review of the September 25 decision. Compl., ECF No. 1. On July 20, 2016, Plaintiff filed his Opening Brief, and on August 29, 2016, Defendant filed its Answering Brief. Pl.'s Br., ECF No. 23; Def.'s Br., ECF No. 26. Plaintiff did not file a Reply Brief.

         A hearing was held on October 11, 2016. Supplemental letter briefing was provided to the court on October 17, 2016. Pl.'s Supp. Br., ECF No. 28; Def.'s Supp. Br., ECF No. 29.


         Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Social Security Act. See 42 U.S.C. § 405(g). In reviewing findings of fact with respect with to such determinations, the court must uphold the Commissioner's decision, made through an ALJ, “unless it is based on legal error or is not supported by substantial evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)). Stated differently, “[s]ubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2007) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). With that said, however, “a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).


         Disability insurance benefits are available under Title II of the Social Security Act when an eligible claimant is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. Id. § 423(d)(2)(A).

         The Social Security Administration has established a five-step sequential analysis to assess disability claims, which asks:

(1) Is the claimant presently working in a substantially gainful activity? If yes, the claimant is “not disabled.”
(2) Is the claimant's impairment severe? If no, the claimant is “not disabled.”
(3) Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If yes, the claimant is “disabled.”
(4) Is the claimant able to do any work that he or she has done in the past? If yes, the claimant is “not disabled.”
(5) Is the claimant able to do any other work? If yes, the claimant is “not disabled.”

See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). For steps one through four, the burden of proof is on the claimant, and if “a claimant is found to be ‘disabled' or ‘not disabled' at any step in the sequence, there is no need to consider subsequent steps.” Id. at 1098. If the claimant reaches step five, the burden shifts to the Commissioner. Id.

         ALJ Horne's September 25 Decision found that Plaintiff: (1) was not engaged in a substantial gainful activity; (2) had three severe impairments: degenerative disc disease of the lumbar spine, major depressive disorder, and obesity; (3) did not have an impairment meeting one of the list of specific impairments described in the regulations; and (4) was unable to perform any past relevant work. AR at 25-29. Thus, Plaintiff survived steps one through four, shifting the burden to the Commissioner. ALJ Horne further found that Plaintiff failed at step five, as the Commissioner established that there were jobs existing in significant numbers in the national economy that Plaintiff could perform given Plaintiff's residual functional capacity (“RFC”). Id. at 30.

         Plaintiff now argues that ALJ Horne erroneously: (A) excluded limitations derived from his diabetes and use of a cane when determining his RFC; (B) rejected the opinion of Dr. Bratton; (C) failed to consider Plaintiff's prior work record when determining his credibility; and (D) failed to meet her duty to Plaintiff by not informing Plaintiff of his right to counsel and inadequately developing the record in Plaintiff's favor.[1] The court addresses these allegations in turn.

         A. The ALJ's Finding Concerning Residual Functional Capacity

         In discussing and determining Plaintiff's RFC, ALJ Horne did not find Plaintiff's subjective complaints of pain to be credible, and consequently did not consider limitations caused by Plaintiff's use of a cane or his diabetes.[2] In determining Plaintiff's credibility, ALJ Horne did not explicitly consider Plaintiff's prior work record. Plaintiff now argues that all three exclusions are error.

         An ALJ “engages in a two-step analysis” when “assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the first step, “the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotation marks and citations omitted). If a claimant's testimony is supported by objective medical evidence, he “need not show that [his] impairment could reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only ...

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