United States District Court, D. Arizona
LAWRENCE O. ANDERSON, Magistrate Judge.
Plaintiff seeks review of the Social Security Administration's decision denying her application for 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. 19, 22 & 23) After review of the record, briefing and applicable law, the decision of the Commissioner is affirmed.
I. Procedural Background
In October 2009, Plaintiff filed an application for Supplemental Security Income disability benefits under Title XVI of the Social Security Act ("Act"). See 42 U.S.C. §§ 1381-1383c. (AR 130-135) Plaintiff was 42 years old when she filed the application and has a tenth-grade education. (AR 41-42) Plaintiff reported in the application that she became disabled on November 1, 2001. (AR 130, 143) Plaintiff initially identified HIV, high blood pressure, asthma, headaches, hepatitis C, and a herniated disc as the conditions that limit her ability to work. (AR 148) At the administrative hearing, however, Plaintiff and her counsel made it clear that the impairments related to her back are the primary bases for her disability claim. (AR. 44-48) Thus, the Administrative Law Judge ("ALJ") focused his questions at the hearing on Plaintiff's back-related impairments. (AR 48)
Plaintiff's application was denied by the Social Security Administration ("SSA") on January 26, 2010. (AR 81-84) Her request for reconsideration was denied on May 12, 2010. (AR 88-91) At Plaintiff's request, a hearing was held on May 19, 2011, before ALJ Alan Markiewicz. (AR 34-67, 92) In a written decision, dated June 14, 2011, the ALJ ruled Plaintiff is not entitled to disability benefits because she "has not been under a disability within the meaning of the Social Security Act since October 8, 2009, the date the application was filed." (AR 20, 20-28)
Plaintiff filed a Request for Review of Hearing Decision/Order on July 5, 2011. (AR 14-15) On October 19, 2012, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (AR 1-3) As a result of the denial, the ALJ's decision became the final decision of the SSA on that date. (AR 1)
On December 14, 2012, and having exhausted the administrative review process, Plaintiff sought judicial review of the Commissioner's decision by filing a Complaint in this District Court pursuant to 42 U.S.C. § 405(g). (Doc. 1) On May 2, 2013, Plaintiff filed an opening Brief pursuant to LRCiv 16.1, in which she seeks a remand for an award of disability benefits or, alternatively, a remand for further administrative proceedings. (Doc. 19) On July 1, 2013, Defendant filed an Opposition to Plaintiff's Opening Brief. (Doc. 22) Plaintiff filed a Reply Brief on July 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 step one, 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 October 8, 2009, the application date. (AR 22) The ALJ found Plaintiff has the following "severe" impairments within the meaning of the regulations: disc disease of the lumbar spine/spina bifida, HIV, hepatitis C, and asthma. ( Id. ) The ALJ determined, however, that Plaintiff does not have an impairment or combination of impairments that meets or medically equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id. ) As a result, the ALJ assessed Plaintiff's residual functional capacity ("RFC"). (AR 22-27) The ALJ determined Plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), but with limitations. (AR 23) Specifically, he found Plaintiff is able to lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and walk for six hours in an eight-hour workday; and sit for six hours in an eight-hour workday. ( Id. ) The ALJ further found Plaintiff "is capable of occasionally climbing ramps and stairs and can occasionally balance, stoop, kneel, crouch and crawl; but is precluded from climbing ladders, ropes and/or scaffolds. She should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation." ( Id. )
In addition, the ALJ determined Plaintiff has no past relevant work but found, "considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform. (AR 27) Based on these findings, the ALJ concluded Plaintiff has not been under a "disability, " as defined in the Act, since the date of the application. (AR 28) Consequently, the ALJ ruled Plaintiff is not entitled to supplemental security income. ( Id. )
Plaintiff contends in her opening brief that the Commissioner's decision should be reversed and the case remanded for an award of benefits. Plaintiff argues the ALJ erred by rejecting the assessments of Plaintiff's treating physician and treating nurse practitioner, and relying on the opinions of a one-time examining physician and a non-examining State agency physician. Plaintiff also argues the ALJ erred by rejecting Plaintiff's symptom testimony in the absence of clear and convincing reasons for doing so. In the responsive brief, Defendant ...