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Rhodes v. Colvin

United States District Court, Ninth Circuit

December 20, 2013

Mark Joseph Rhodes, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of the Social Security Administration, Defendant.

ORDER

LAWRENCE O. ANDERSON, Magistrate Judge.

Plaintiff, proceeding pro se, seeks review of the Social Security Administration Commissioner's decision denying his application for disability insurance benefits and supplemental security income. The parties, who have expressly consented in writing to proceed before the undersigned Magistrate Judge per 28 U.S.C. § 636(c), have filed briefs in accordance with the Rules of Practice ("Local Rules" or "LRCiv") 16.1. (Docs. 21-23) After review of the record, briefing and applicable law, the decision of the Commissioner is affirmed.

I. Procedural Background

In October 2008, Plaintiff filed applications for Social Security Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI, respectively, of the Social Security Act. See 42 U.S.C. §§ 401-433 and §§ 1381-1383c. (AR[1] 13, 35-36) Plaintiff was born on June 3, 1964, and was forty years old on the alleged onset date of his disability. (AR 19) Plaintiff graduated from high school and completed about one year of college. (AR 43) Plaintiff reported in his applications he was unable to work due to a disabling condition beginning on January 2, 2005, and he remains disabled. (AR 129, 133) Plaintiff has identified hidradenitis suppurativa, [2] degenerative disc disease, and spinal stenosis (narrowing of the spinal canal) as the conditions that limit his ability to work. (AR 150)

Plaintiff's applications were denied by the Social Security Administration ("SSA") on April 14, 2009. (AR 79-86) His request for reconsideration was denied on August 5, 2009. (AR 88-94) At Plaintiff's request, a hearing was held on September 7, 2010, before Administrative Law Judge ("ALJ") Earl C. Cates, Jr.[3] (AR 95, 30-74) In a decision dated September 24, 2010, the ALJ ruled Plaintiff is not entitled to disability benefits because he "has not been under a disability, as defined in the Social Security Act, from January 5, 2005, through the date of this decision." (AR 21, 13-21)

Plaintiff filed a Request for Review of Hearing Decision/Order on November 24, 2010. (AR 6) On June 16, 2012, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (AR 1-5) As a result of the denial, the ALJ's decision became the final decision of the Commissioner of the SSA. (AR 1)

On August 17, 2012, having exhausted the administrative review process, Plaintiff sought judicial review of the Commissioner's decision by filing a pro se Complaint in this District Court, pursuant to 42 U.S.C. § 405(g). (Doc. 1) The Court granted Plaintiff three opportunities to cure deficiencies in his pleadings, which resulted in the filing of a First, Second and Third Amended Complaint. (Docs. 5-10) On March 1, 2013, Plaintiff filed an Opening Brief, pursuant to LRCiv 16.1, in which he seeks a remand for an award of disability benefits or, alternatively, a remand for further administrative proceedings. (Doc. 21 at 16-17) On March 29, 2013, Defendant filed an Opposition to Plaintiff's Opening Brief. (Doc. 22) Plaintiff filed a Reply Brief on April 18, 2013. (Doc. 23)

II. Applicable Legal Standards

A. Standard of Review

A district court must affirm the ALJ's findings if they are supported by substantial evidence and are free from reversible error. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence is more than a scintilla, but less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Reddick, 157 F.3d at 720. In determining whether substantial evidence supports the ALJ's decision, a district court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "If the evidence can reasonably support either affirming or reversing the Secretary's conclusion, the court may not substitute its judgment for that of the Secretary." Reddick, 157 F.3d at 720-21.

B. Sequential Evaluation Process

To be eligible for social security disability benefits, a claimant must show an "inability to engage in any substantial gainful activity by reason of any medically determinable 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 12 months." 42 U.S.C. § 423(d)(1)(a); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The claimant bears the initial burden of proving disability. 42 U.S.C. § 423(d)(5); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). A five step procedure is used to evaluate a disability claim:

In stepone, the Secretary determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). In step two, the Secretary determines whether the claimant has a "medically severe impairment or combination of impairments, " as defined in 20 C.F.R. § 404.1520(c). If the answer is no, the claimant is not disabled. If the answer is yes, the Secretary proceeds to step three and determines whether the impairment meets or equals a "listed" impairment that the Secretary has acknowledged to be so severe as to preclude substantial gainful activity. 20 C. F.R. § 404.1520(d). If this requirement is met, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. At step four, the Secretary determines whether the claimant can perform "past relevant work." 20 C. F. R. § 404.1520(e). If the claimant can perform such work, she is not disabled. If the claimant meets the burden of establishing an inability to perform prior work, the Secretary must show, at step five, that the claimant can perform other substantial gainful work that exists in the national economy. 20 C.F.R. § 404.1520(f).

Reddick, 157 F.3d at 721.

III. ALJ Decision

Applying the five-step procedure in this case, the ALJ determined Plaintiff has not engaged in substantial gainful activity since January 2, 2005, the alleged onset date of his disabling condition. (AR 15) The ALJ found Plaintiff has the following "severe" impairments within the meaning of the regulations: degenerative disc disease, hidradenitis and obesity. ( Id. ) The ALJ determined, however, that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 16) As a result, the ALJ assessed Plaintiff's residual functional capacity[4] ("RFC"). (AR 16-19)

The ALJ determined Plaintiff has the RFC to perform the full range of sedentary work and limited light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b). (AR 16) He found Plaintiff is able to occasionally lift five to ten pounds with either hand and ten to twenty pounds with both hands; sit for one hour at a time for six to eight hours; and stand fifteen minutes at a time for up to eight hours. The ALJ found Plaintiff has difficulty walking because his legs rub, which aggravates the skin between his legs. ( Id. ) Consequently, the ALJ found Plaintiff "is more sedentary than light for residual functional capacity." ( Id. )

In addition, the ALJ determined Plaintiff is capable of performing his past relevant work as a personal investor for a family trust. (AR 19) He further found that even if Plaintiff could not perform his past work as a personal investor, there are other jobs that exist in significant numbers in the national economy Plaintiff can perform, including telemarketer, office helper and receptionist. (AR 19-20) Based on these findings, the ALJ concluded Plaintiff has not been under a "disability, " as defined in the Social Security Act, from the alleged date of onset through the date of the ALJ's decision. (AR 21) Consequently, the ALJ ruled Plaintiff is not entitled to disability insurance benefits or supplemental security income. ( Id. )

IV. Analysis

Plaintiff contends in his opening brief that the Commissioner's decision should be reversed and the case remanded for an award of benefits. First, Plaintiff appears to argue that two of his impairments meet or medically equal a listed impairment. Second, Plaintiff argues the ALJ erred by relying on an MRI of his neck, which was not performed on him, and addressing conditions Plaintiff never alleged. Third, Plaintiff argues the ALJ improperly gave Dr. Cunningham's assessment controlling weight, despite this physician's failure to perform a proper exam. Fourth, Plaintiff argues the ALJ committed a procedural error by failing to allow Plaintiff to make a verbal or written closing statement. Lastly, Plaintiff argues the ALJ erred by not including Plaintiff's mental limitations in his RFC assessment.[5] In the responsive brief, the ...


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