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Mayhew v. Colvin

United States District Court, Ninth Circuit

December 4, 2013

MARK HALE MAYHEW, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, [1] Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 14, 15, 16).

After considering and reviewing the record, the Court finds that the ALJ's decision is without harmful legal error and based on substantial evidence in the record as a whole. Plaintiff has not met his burden to demonstrate that he suffers from further functional limitations with respect to his carpal tunnel syndrome than found by the ALJ, and the ALJ's rejection of the medical opinion of Dr. Lawrence Smith, Ph.D. is supported by specific and legitimate reasons supported by substantial evidence in the record as a whole. Therefore, this matter should be affirmed.

BACKGROUND

Plaintiff, MARK HALE MAYHEW, was born in July, 1971 and was thirty nine years old on the amended alleged date of disability onset of January 4, 2011 ( see Tr. 10, 27, 146). Plaintiff was in the military and has past relevant work as a data entry clerk, intelligence clerk and trainer ( see Tr. 18-19). According to plaintiff's testimony, he was "doing pretty good in the military until [he] got hurt" (Tr. 31). According to one doctor's description:

He had a neck injury in July of 2010 while working out at gym at Fort Lewis and he did a little, overdid it, and then got himself injured in the neck and strained it. Subsequently, he developed numbness in fingers, both hands, pain in the upper lateral aspects of the forearms.

(Tr. 258).

Plaintiff has at least the severe impairments of obesity; post traumatic stress disorder ("PTSD"); major depressive disorder; cervicalgia, back pain; epicondylitis and shin splints ( see Tr. 12).

At the time of the hearing, plaintiff was living in a condo owned by his parents, having separated from his wife (Tr. 29). Plaintiff has responsibility for his children, who are ages five and eight, for a couple of hours in the afternoons three days a week, as well as one or two nights every other week ( see id. ).

PROCEDURAL HISTORY

On February 22, 2011, plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act ( see Tr. 10, 144-52). The application was denied initially, and following reconsideration, in 2011 ( see Tr. 10). Plaintiff's requested hearing was held before Administrative Law Judge Rebekah Ross ("the ALJ") on February 1, 2012 ( see Tr. 23-64). On February 24, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 7-22).

On August 10, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision on October 11, 2012 ( see ECF No. 1). Defendant filed the sealed administrative record regarding this matter ("Tr.") on January 3, 2013 ( see ECF Nos. 11, 12).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ erred in failing to find plaintiff's carpal tunnel to be a severe impairment; (2) Whether or not the ALJ erred in evaluating the medical evidence provided by Dr. Lawrence W. Smith, Ph.D.; (3) Whether or not the ALJ erred in failing to incorporate limitations from plaintiff's carpal tunnel syndrome and from the opinion of Dr. Smith into plaintiff's residual functional capacity ("RFC"); and, (4) Whether or not the ALJ's errors are harmless ( see ECF No. 14, p. 1).

STANDARD OF REVIEW

Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment "which can be expected to result in death or which has lasted, or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).

In addition, the Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ( citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") ( citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).

DISCUSSION

1. Whether or not the ALJ erred in evaluating plaintiff's ...


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