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Pollock v. Commission of Social Security

United States District Court, D. Arizona

May 17, 2016

Stephanie Pollock, Plaintiff,
v.
Commission of Social Security, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge.

         Plaintiff Stephanie Pollock appeals the Commissioner of Social Security’s decision denying her application for disability insurance benefits. For the following reasons, the Commissioner’s decision is affirmed.

         BACKGROUND

         Pollock applied for disability insurance benefits in April 2012, alleging that she became disabled in October 2011. (A.R. 133.) Pollock appeared and testified at a hearing before an Administrative Law Judge (“ALJ”) in November 2013. (Id. at 30-48.) A vocational expert (“VE”) also testified. (Id.) In February 2014, the ALJ issued a written decision denying Pollock’s application for disability insurance benefits. (Id. at 15-24.) The Appeals Council denied Pollock’s request for review, making the ALJ’s decision the Commissioner’s final decision. (Id. at 1, 10.) This appeal followed.

         LEGAL STANDARD

         The district court reviews only those issues raised by the party challenging the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

         DISCUSSION

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

         At step one, the ALJ determined that Pollock meets the insured status requirements of the Social Security Act through December 31, 2016, and has not engaged in substantial gainful activity since her alleged disability onset date. (A.R. 17.) The ALJ found at step two that Pollock’s bipolar disorder and back pain are severe impairments, but concluded at step three that they do not meet or medically equal the severity of an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 17-18.) At step four, the ALJ found that Pollock has the RFC to perform:

a full range of work at all exertional levels but with the following nonexertional limitations: [she] has mild limitations in her ability to understand, remember and carry out simple instructions and to make judgments on simple work related decisions; she has moderate limitations in her ability to understand, remember and carry out complex instructions and in her ability to make judgments on complex work related decisions; she has moderate limitations in her ability to interact appropriately with supervisors and coworkers; and she has moderate limitations in her ability to respond appropriately to usual work situations and to changes in a routine work setting.

(Id. at 19.) Based on this RFC, the ALJ found that Pollock is unable to perform her past relevant work as a certified nursing assistant. (Id. at 22.) At step five, however, after considering Pollock’s age, education, work experience, and RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Pollock can perform. (Id. at 23.) Accordingly, the ALJ found that Pollock is not disabled within the meaning of the Social Security Act. (Id. at 24.)

         Pollock argues that the ALJ erred by: (1) failing to articulate limitations associated with her back pain; (2) discrediting her subjective complaints; and (3) assigning no weight to the opinion of nurse practitioner Susan Anderson. (Doc. 13.)

         I. Pollock’s Back Pain

         Pollock argues that the ALJ erred by not articulating limitations associated with her back pain, which the ALJ found was a severe impairment at step two. (Doc. 13 at 13-16.) She contends it is unknown whether she can perform other work in the national economy “[w]ithout knowing what limitations the ALJ would have given for the back pain . . . .” (Id. at 16.) The ALJ’s decision, however, is not silent on the limitations associated with her back pain. The ALJ found that Pollock retained the RFC to perform work “at all exertional levels, ” and determined that she has only nonexertional limitations. (A.R. 19.) In other words, the ALJ assessed no limitations arising from her back pain, and Pollock incorrectly assumes that a severe impairment identified at step two requires corresponding exertional limitations at step four. “[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen v. Charter, 80 F.3d 1273, 1290 (9th Cir. 1996). It is based on medical evidence alone and reasonable doubts are resolved in favor of the claimant. As such, a severe finding at step two does not require the ALJ to later find work-preclusive limitations after considering all other relevant evidence. See Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (“The step two and step five determinations require different levels of severity of limitations such that the satisfaction of the requirements at step two does not automatically lead to the conclusion that the claimant has satisfied the requirements at step five.”); Taylor v. Heckler, 605 F.Supp. 407, 412 (D. Me. ...


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