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Absher v. Colvin

United States District Court, S.D. California

July 17, 2017

GUY CRISTMAN ABSHER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE CROSSMOTIONS FOR SUMMARY JUDGMENT [DOC. NOS. 12 AND 15]

          KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("SSA"), plaintiff filed a Complaint to obtain judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his disability insurance benefits and supplemental security income. [Doc. No. 1.] Pursuant to 28 U.S.C. § 636(b)(1)(B), and Civil Local Rules 72.1 (c)(1)(c) and 72.2(a), this matter was assigned to the undersigned Magistrate Judge for a Report and Recommendation.

         Presently before the Court are: (1) plaintiffs Motion for Summary Judgment [Doc. No. 12]; (2) defendant's Cross-Motion for Summary Judgment and Response in Opposition to plaintiff's Motion for Summary Judgment [Doc. Nos. 15 and 16]; (3) plaintiff's Response in Opposition to defendant's Cross-Motion for Summary Judgment [Doc. No. 17]; and (4) the Administrative Record [Doc. No. 10].

         Plaintiff's Motion for Summary Judgment challenges the denial of disability benefits and supplemental security income benefits on the basis that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence and is legal error. [Doc. No. 12-1, at pp. 4-9, 10-14.]. Plaintiff argues that the ALJ allegedly: (1) mischaracterized plaintiff's past relevant work as a painter, and then erred in finding that plaintiff could return to this past relevant work as generally and actually performed; (2) erred in an alternative finding that plaintiff could perform three other occupations because plaintiffs residual functional capacity does not conform with those job requirements; and (3) erred in considering a job that is part-time as "other work" that plaintiff can perform. Id.

         Plaintiff seeks an Order from this Court reversing the decision to deny benefits and remanding for further administrative proceedings. Id. Defendant contends that the decision to deny benefits should be upheld because it is based on substantial evidence and is free of reversible legal error. [Doc. No. 15-1, at p. 12.] After careful consideration of the moving and opposing papers, as well as the Administrative Record and the applicable law, this Court RECOMMENDS that the District Court DENY plaintiffs Motion for Summary Judgment [Doc. No. 12] and GRANT defendant's Cross-Motion for Summary Judgment [Doc. No. 15].

         I. Background and Procedural History.

         Plaintiff worked as a painter from January 1986 through January 1993, and then from January 1994 through June 2010. [AR 251.][1] On April 15, 2014, the date of plaintiff s hearing before the ALJ, plaintiff was 49 years old. [AR 46, 51.]

         On February 10, 2012, plaintiff completed an application for social security disability benefits. [AR 109, 199.] On February 13, 2012, plaintiff applied for supplemental security income. [AR 110, 224.] Plaintiffs applications stated that he was born on January 1, 1965. [AR 199, 224.] Plaintiff claimed in these applications that his disability began on June 1, 2010, and he was unable to work because of amputation of his left arm, head injury, depression, anxiety, headaches, blood clots, suicidal thoughts, right hand shattered, nerve damage, and trouble sleeping. [AR 94-95, 199, 203.]

         On June 25, 2012, the Social Security Administration ("SSA") denied plaintiff's applications. [AR 147-51.] The SSA found that although plaintiff's condition limited his ability to perform work-related activities, it was not severe enough to keep him from working. [AR 147-51.] The SSA's decision noted that there was insufficient vocational information to determine whether plaintiff could perform any of his past relevant work, but there was evidence in the file indicating that he could adjust to other work. [AR 147-148.] It also stated that although plaintiff was experiencing some depression and anxiety, there was no indication that it was a major limitation on his ability to think, communicate, follow basic instructions, or to function adequately in his usual daily activities. [AR 147.]

         On August 2, 2012, plaintiff filed a request for reconsideration. [AR 153.] In plaintiff's request for reconsideration, he indicated that he alleged worsening of his mental condition beginning in May 2012. [AR 112, 127.] The medical evidence indicated a suicide attempt by plaintiff on December 8, 2012. [AR 116, 131.] On February 15, 2013, the SSA reconsidered plaintiff's applications and affirmed the initial decision of denial, finding that plaintiff's condition was not severe enough to keep him from working. [AR 154.] The determination included a finding that although plaintiff may be anxious and depressed at times, he was able to perform work that requires the ability to remember, follow, and carry out simple instructions at jobs that do not require public contact. [AR 155.]

         On April 4, 2013, plaintiff submitted additional evidence in support of his claim for benefits and requested a hearing before an ALJ. [AR 161.] A hearing was held on April 15, 2014. [AR 46.] Plaintiff, who was represented by an attorney, appeared and testified at the hearing. [AR 48.] A vocational expert, Harlan Stock, also testified at the hearing. Id.

         On July 18, 2014, the ALJ issued a written decision and concluded that plaintiff was not disabled within the meaning of the Social Security Act from June 1, 2010 through the date of the decision. [AR 29-40.] The ALJ found that plaintiff did not qualify for disability insurance benefits or supplemental security income benefits. Id.

         On August 25, 2014, plaintiff requested review of the ALJ's decision by the Appeals Council. [AR 24-25.] On January 11, 2016, the Appeals Council denied review of the ALJ's July 18, 2014 decision. [AR 1-3.] As a result, the ALJ's decision became the final decision of the Commissioner. [AR 1.] The Complaint in this action was filed on March 10, 2016. [Doc. No. 1.]

         II. Standards of Review.

         The final decision of the Commissioner must be affirmed if it is supported by substantial evidence and if the Commissioner has applied the correct legal standards. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (citing Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). Under the substantial evidence standard, the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record. Id. If there is evidence in the record to support more than one rational interpretation, the District Court must defer to the Commissioner's decision. Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). "In determining whether the Commissioner's findings are supported by substantial evidence, we must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)).

         Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary judgment motions, as defined by [Federal Rule of Civil Procedure] 56, contemplate the use of evidentiary material in the form of affidavits, depositions, answers to interrogatories, and admissions. In Social Security appeals, however, the Court may 'look no further than the pleadings and the transcript of the record before the agency, ' and may not admit additional evidence." Kenney v. Heckler, 577 F.Supp. 214, 216 (N.D. Ohio 1983) (quoting Morton v. Califano, 481 F.Supp. 908, 914 n.2 (E.D. Tenn. 1978); see also 42 U.S.C. § 405(g); Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972) (finding judicial review of an administrative decision regarding disability benefits that presents only an issue of law and not a question of fact to be a proper issue to raise by summary judgment). "[A]lthough summary judgment motions are customarily used [in social security cases], and even requested by the Court or Magistrate, such motions merely serve as vehicles for briefing the parties' positions, and are not a prerequisite to the Court's reaching a decision on the merits." Id. vehicles for briefing the parties' positions, and are not a prerequisite to the Court's reaching a decision on the merits." Id.

         III. Evidence in the Administrative Record.

         A. Relevant Education, Work History, and Medical Information

         The record includes a form titled "Disability Report - Adult - Form SSA-3368." [AR 249.] This form states it was completed by an attorney. [AR 250.] The form is undated, but based on the Court Transcript Index for the Administrative Record, it appears to have been completed on February 15, 2012. [Doc. No. 10, Ex. 1 at p. 2.]

         The "Medical Conditions" section of the form includes the following conditions that plaintiff claims limit his ability to work: left arm amputee, head injury, depression, anxiety, blood clots in brain, suicidal thoughts, right hand shattered, nerve damage, and trouble sleeping. [AR 250.] The "Work Activity" section states that plaintiff stopped working on June 1, 2010 because of his medical conditions. Id. The "Education and Training Information" section states that twelfth grade was the highest grade of school plaintiff completed, and that he attended special education classes for two years in middle school. [AR 251.] The "Job History" section states that plaintiff worked as a painter from January 1986 through January 1993 for one business, and then from January 1994 through June 2010 for a different business. Id. The "Medicines" section states that plaintiff was taking three prescribed medications for pain, depression, and sleep. [AR 252-53.] The "Medical Treatment" section states that plaintiff was in an accident[2] in 2007 that resulted in amputation of his left arm, the shattering of his right hand, loss of his spleen, and major nerve damage. [AR 255-56.]

         The "Remarks" section states that after plaintiff's accident in 2007 and recovery of several months, he returned to painting because it was his only job and he needed to support himself. [AR 258.] Plaintiff further explained on the form:

[Painting] was a lot harder with one arm. I was having phantom pain in the missing arm and my other arm was having to [sic] all of the work. I started getting severe cramping in my arm after using it for an hour or two. Then the depression and suicidal thoughts started. Finally, in 2010, I stopped working all together. I am on medications and go to group and individual therapy, but often feel suicidal and depressed. I have been thru [sic] the Department of Rehab and they said I could not be rehabilitated. I have blood clots in my brain and my doctor advised me to avoid stressful situations.

Id.

         B. Relevant Testimony at the April 15, 2014 Administrative Hearing

         At the beginning of the administrative hearing, the ALJ asked plaintiff's attorney if he wanted to submit any additional documents in connection with the hearing. [AR 49.] Plaintiff's attorney replied that he had additional medical records regarding plaintiffs new diagnosis of congestive heart failure. Id. The ALJ asked plaintiff's attorney to submit them as soon as possible. Id.

         1. Plaintiff

         Plaintiff testified at the hearing that he did not have a driver's license, and most of the time, he received rides from friends or his mother; otherwise, he took public transportation. [AR 52.] When the ALJ asked where he went, plaintiff replied that he went to doctor's appointments and Alcoholics Anonymous meetings. Id. Plaintiff stated that he attended the meetings three to four times a week, that they lasted about an hour, and there were usually ten to twenty people at each meeting. Id. When asked how he got along with the other people at the meetings, plaintiff responded, "Okay most of the time." Id. He explained that it was usually the same set of people at each meeting, plus new people coming in and out. Id.

         Plaintiff testified that he was not working at the time of the hearing. [AR 53.] The ALJ asked plaintiff about an exhibit in the record from February 2014 indicating that plaintiff feels depressed when he is not working and his desire to "work at whatever job that [he] can find." Id. Plaintiff explained that at the time of the hearing he "was trying" to find work, but that he was unable to find any work recently. [AR 53-54.] Plaintiff further explained that two months prior to the hearing, he did some yard work for his mother and her neighbors in the trailer park, such as trimming bushes and roses or plucking flowers. Id. The yard owners paid him by cooking for him or giving enough money to pay for his phone. [AR 55.]

         Plaintiff stated that after he lost his left arm in the motorcycle accident in 2007, he went back to work as a painter. Id. The ALJ commented that plaintiffs earnings after the accident were similar to earnings prior to the accident; plaintiff earned a little under $10, 000.00 in 2001, approximately $10, 000.00 in 2004, and $11, 000.00 in 2008.[3] [AR 56.] When the ALJ asked plaintiff how his missing arm affected him, plaintiff responded that "[i]t was really hard, because of the back giving me spasms and not being able to bend over, and, you know, carry the tools with me." Id. Plaintiff said that he compensated for the missing arm by doing a lot of brush work, and when the brush work ran out, he did not work. Id.

         The ALJ asked plaintiff to explain what type of "brush work" that he did. Id. at 56-57. Plaintiff explained that he used a paint brush and could not use a roller because it was too difficult to do with his one arm. [AR 57.] He explained that two arms were needed to work the roller. Id. The ALJ asked, "when you talk about brush work, would you mainly be doing like door frames, just a small section?" Id. Plaintiff answered, "Yes sir." Id.

         The ALJ asked plaintiff about his work as a painter after the 2007 motorcycle accident, including duties plaintiff had in addition to brush work. [AR 70.] Plaintiff replied that he "just push[ed] the cart around" and "that was pretty much it." Id. Plaintiff said that the company he worked for after the accident was the same one he had worked for before the accident. Id. When asked about duties that he could not perform after the accident, plaintiff said that he could not get up on a ladder because it was not safe for him, but he did get on a lift. Id. The ALJ asked, "[s]o, obviously, you were able to do some of the work, otherwise they wouldn't have kept you around, right?" [AR 71.] Plaintiff answered, "[i]t was more like a - the guy I know was a friend, helping me. But the - he kept me there just to help me out so I can live." Id.

         2. Vocational Expert

         At the hearing, the ALJ asked the vocational expert ("VE") to classify plaintiff's past work history. [AR 72.] The VE explained:

The only job in the record in [Exhibit] 2-E is that of a painter. Maintenance, DOT[4] 840.381-010, which has an SVP of 7, which is medium per the DOT, and per Mr. Absher's testimony today, it was much less than medium as he's been - as he had been working at ...

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