McCray v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Wilford Lee McCray, No. CV-19-08018-PCT-ESW 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [15] Pending before the Court is Wilford Lee McCray’s (“Plaintiff”) appeal of the Social [16] Security Administration’s (“Social Security”) denial of his application for disability [17] insurance benefits. Under 42 U.S.C. § 405 (g), the Court has the power to enter, based upon [18] the pleadings and transcript of the record, a judgment affirming, modifying, or reversing [19] the decision of the Commissioner of Social Security, with or without remanding the case [20] for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge [21] jurisdiction. (Doc. 9). After reviewing the parties’ briefing (Docs. 14, 19, 20), the Court [22] finds that the Administrative Law Judge’s (“ALJ”) decision is supported by substantial [23] evidence and is free of harmful legal error. The decision is therefore affirmed. [24] I. LEGAL STANDARD [25] In determining whether to reverse an ALJ’s decision, the district court reviews only [26] those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503 , [27] 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s determination only [28] if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 1 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than 2 a preponderance; it is relevant evidence that a reasonable person might accept as adequate 3 to support a conclusion considering the record as a whole. Id. To determine whether 4 substantial evidence supports a decision, the Court must consider the record as a whole and 5 may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 6 Generally, “[w]here the evidence is susceptible to more than one rational interpretation, 7 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 8 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 9 In Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), the Ninth Circuit held that 10 principles of res judicata apply to administrative decisions. If Social Security determines 11 that a claimant is not disabled, a presumption of continuing non-disability applies to the 12 claimant’s subsequent claims. 20 C.F.R. §§ 404.957 (c)(1), 416.1457(c)(1). The claimant 13 can rebut the presumption by showing “changed circumstances” indicating greater 14 disability. Chavez, 844 F.2d at 693 . Changed circumstances may include the existence of 15 a new impairment not previously considered or an increase in the severity of an 16 impairment. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). If the claimant rebuts the 17 presumption, the ALJ can consider whether the claimant is disabled by following the five18 step process described in 20 C.F.R. § 404.1520 (a). [19] II. BACKGROUND [20] Plaintiff, who was born in 1962, has past relevant work as a well-driller. (A.R. 59, [21] 210). This case involves Plaintiff’s second application for disability benefits. Social [22] Security granted Plaintiff’s prior application for disability insurance benefits effective [23] March 19, 2006. (A.R. 70). In an October 2, 2013 decision (the “First Decision”), an ALJ [24] determined that Plaintiff’s disability ended on March 1, 2012. (A.R. 77). After the Appeals [25] Council denied review, Plaintiff filed an appeal with the U.S. District Court for the District [26] of Arizona. The Court affirmed the First Decision. (Case No. 3:15-cv-08014-DJH (D. [27] Ariz. Sept. 28, 2016, Doc. 20)). [28] On April 24, 2015, Plaintiff filed a second application for disability insurance 1 benefits, which alleged disability beginning on November 20, 2013 through Plaintiff’s last 2 insured date of March 31, 2014. (A.R. 210-13). Social Security denied the application on 3 November 24, 2015. (A.R. 148-151). On March 29, 2016, upon Plaintiff’s request for 4 reconsideration, Social Security affirmed the denial of Plaintiff’s application. (A.R. 1555 60). Plaintiff then requested a hearing before an ALJ. (A.R. 161-62). The ALJ held a 6 hearing on October 17, 2017, during which Plaintiff was represented by an attorney. (A.R. 7 38-66). In his February 22, 2018 decision (the “Second Decision”), the ALJ found that 8 Plaintiff did not rebut the presumption of non-disability by showing new and material 9 evidence. (A.R. 16). The ALJ made the alternative finding that even if Plaintiff did rebut 10 the presumption, Plaintiff is capable of performing certain jobs existing in significant 11 numbers in the national economy. (A.R. 30). The Appeals Council denied Plaintiff’s 12 request for review. (A.R. 1-6). On January 21, 2019, Plaintiff filed a Complaint (Doc. 1) 13 pursuant to 42 U.S.C. § 405 (g) requesting judicial review and reversal of the decision. 14 III. DISCUSSION 15 On November 20, 2013, Plaintiff’s treating physician Timothy Bonatus, M.D. 16 completed a “Medical Assessment of Ability To Do Work Related Activities” (the 17 “Medical Assessment”). (A.R. 589-91). Plaintiff asserts that the Medical Assessment 18 shows a worsening of Plaintiff’s conditions that is sufficient to rebut the Chavez 19 presumption. (Doc. 14 at 15). In the Second Decision, the ALJ did not find that Dr. 20 Bonatus’s opinion demonstrates changed circumstances. (A.R. 15). Although the ALJ did 21 not clearly state his rationale for making this determination, his reasons are apparent from 22 the hearing testimony and other portions of his opinion. See Magallanes v. Bowen, 881 23 F.2d 747, 755 (9th Cir. 1989) (finding that a reviewing court may draw reasonable 24 inferences from an ALJ’s discussion of the facts and evidence). 25 To reiterate, Chavez instructs that a claimant must prove “changed circumstances 26 indicating greater disability.” 844 F.2d at 693 (internal quotations omitted) (emphasis 27 added). “Based on the word ‘indicating,’ it is clear that there must be a causal relationship 28 between the changed circumstances and the greater disability.” Bose v. Astrue, No. CV □□ 09-02257-PHX-MHM, 2011 WL 1211601 , at *9 (D. Ariz. Mar. 31, 2011). Therefore, a || claimant must show both changed circumstances and greater disability, as well as a causal 3 || relationship between the two. /d. (“[W]hile the Plaintiff is correct that he must demonstrate 4|| both changed circumstances and greater disability, Chavez dictates that he must do so in a 5 || manner that shows a causal relationship between the two.”). 6 Here, the record indicates that Dr. Bonatus’ Medical Assessment is based on medical evidence that was reviewed in conjunction with the First Decision. The ALJ who 8 || issued the First Decision in October 2013 reviewed medical records from March 2006 9|| through September 2013. (A.R. 32-34). As the ALJ noted at the administrative hearing, || Plaintiff did not submit any additional treatment records from September 2013 through the 11 || November 2013 date of Dr. Bonatus’ Medical Assessment. (A.R. 42-45). Plaintiff testified at the hearing that when he saw Dr. Bonatus on November 20, 2013, Dr. Bonatus merely 13 || reviewed Plaintiffs prior X-rays. (A.R. 42). Dr. Bonatus did not previously complete a 14|| medical assessment of Plaintiff's limitations, and the November 20, 2013 Medical 15 | Assessment does not state that Dr. Bonatus determined that Plaintiff's conditions worsened 16 || since October 2013. The Court does not find that the ALJ erred in determining that Plaintiff failed to demonstrate any “changed circumstance” that indicates greater disability. See id. 18 ] (‘Plaintiff cannot attempt to resurrect medical facts that have already been decided simply by having his doctor refer to those facts at a later time.”’) (citing Chavez, 844 F.2d at 693 ). Plaintiff has failed to rebut the presumption of continuing non-disability. The Second 21 || Decision will be affirmed. 22 IV. CONCLUSION 23 Based on the foregoing, 24 IT IS ORDERED affirming the decision of the Commissioner of Social Security. 25 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly and terminate this matter. 27 Dated this 30th day of January, 2020. . 28 7 Ad Ld wot Eileen S. Willett United States Magistrate Judge -4-