United States District Court, D. Arizona
REPORT AND RECOMMENDATION
D. Thomas Ferraro United States Magistrate Judge
Plaintiff Kari Pardo brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Pardo filed an opening brief, the Commissioner filed a brief, and Pardo filed a reply. (Docs. 19, 20, 21.) Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
From 1997 to 2011, Pardo did administrative office work, data entry, phone calls, filing, etc. (Administrative Record (AR) 122, 142-44.) Pardo filed an application for Disability Insurance Benefits (DIB) on September 1, 2011. (AR 105.) She alleged disability from March 16, 2011. (Id.)
Pardo’s application for DIB was denied upon initial review (AR 39-45) and on reconsideration (AR 47-53). A hearing was held before an ALJ on February 22, 2013. (AR 22-37.) The ALJ found Pardo had medically determinable impairments, carpal tunnel syndrome, rheumatoid arthritis, and plantar fasciitis. (AR 13.) However, the ALJ concluded the impairments did not significantly limit Pardo’s ability to do basic work activities; therefore, she found Pardo’s impairments were not severe at Step Two. (Id.) The Appeals Council denied Pardo’s request to review the ALJ’s decision. (AR 1.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant’s RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019
(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
Pardo argues the ALJ committed four errors: (1) the ALJ erroneously evaluated Pardo’s credibility; (2) the ALJ erred in rejecting the evaluation of vocational expert Philip Shapiro; (3) the ALJ improperly weighed treating physician testimony; and (4) the ALJ erred in failing to fully develop the record.
Pardo testified that she could stand from thirty minutes to an hour-and-a-half depending on the pain in her foot, sit for two to three hours, and lift at most ten pounds. (AR 31.) She also testified that she does not use a computer because it causes her hands to ache and that she has a pain level of 8 out of 10 all the time. (AR 32.) The ALJ found Pardo’s testimony was not entirely credible. (AR 14.)
Pardo challenges the ALJ’s finding on her credibility regarding her symptoms because it was not based on consideration of the entire record. Defendant contends that a determination of severity at Step Two is based solely on objective medical evidence. Implicit in Defendant’s argument is her contention that credibility is irrelevant to ...